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REPORT OF CASES
HWLBWWY
DETERMINED I1 TH I
o\O.
SUPREME COURT
WIICZI.
UNIV.
OF
OI TH]
STATE OF COLORADO.
O-ii-.
BY L. B. FRANCE.
qu
J70
ii
VOL. V'.
CO.\"!AY.1\G cmsns DECIDED xr THE APRIL TERM, 1879; 1'1-11: oc
'r0m~:B AND nncnmnnn rnnms, 1879; 'rm': APRIL

AND DECEMBER TERMS, 1880; AND THE
APRIL AND DECEMBER

TERMS, 1881.
CHICAGOi
CALLAGHAN & COMPANY, PUBLISHERS.

1882.
Entered according to an Act of Congress, in the year 1882, by

N. H. MELDRUM, Secretary of State,
In the Office of the Librarian of Congress, at Washington.
stereotyped PrinTED and Bound

BY
"the Chicago Ltdal news Co.
JUSTICES OF THE SUPREME COURT

of THE
STATE OF COLORAD0.
SAMUEL H. ELBERT, C. J.
WILBUR F. STONE, J.
WILLIAM E. BECK.
KEYES DANFORTH,
Clerk.
CHARLES H. TOLL,
Attorney-general.
TABLE OF CASES REPORTED.
IPAGE
IPAGE
Chaffee, Gomer v.............. 383
Chaffee, Speelman v............
Allen v. Tritch et al.......... ... 222
21
Charles v. Eshelman et al. Exrs 107
Cheeley, Clayton et al. v........ 337
Childs et al. Mattison v......... 78
Animas Canon Toll Road Co.,

Riddell et al. v. . . . . . . . . . . . . . 230
Anthony et al., Stebbins v. .... , 348
Anthony et al. Stebbins v......
Clayton et al. v. Cheeley........ 337
342
Clayton et al. Whitsett v....... 476

Clifford, Hexter v.............. 168
Anthony, Stebbins v. ......... 273

A.T. & S. F. R. R. Co. v. The
People ex rel.........
-
281
Cody v. Filley.................
124
Collins, Sears v. .......... ... . . 492

Colorado Cent. R. R. Co. v.
Barker, Hawley v..............
Smith....................... 160
Holmes..................... 197
Holmes..................... 516
Colorado Cent. R. R. Co. v. Lea
e t al......................... 192
118
Barndollar et al. v. Patton... .29, 46
v. Henderson
6
400
Behymer v. Cook.............. 395
Binkleman, Meyer et al. v...... 133
Binkleman, Meyer et al. v...... 262
Bissell et al. v. Cushman....... 76
C. Pueblo Co. v. Sloan
T. . . . . . . . . . . . . . . . . . . . . . . .
Behrens v. K. P. Ry. Co........
P:
*: C. C. Pueblo
Cobb et al. Murphy v. ........

- - - - - -
*: Impl., &c.
247
Chandler, Crane et al. v........
Alvord et al. v. McGaughey.... 244
et al. . . . . . . . . . . . . . . . . . . . . . . .
Co. Haas et
- W. . . . . . . . . . . . . . . . . . . . . . . .
Boettcher, Colo. Nat'l B'k of

Denver v.................... 185
Colorado Natl B'k Wyman v.

Colorado Springs Co. v. Hopkins.
Colorado Springs Co. Hewitt v.
Cook, Behymer v..............
Cowan et al. Larimer County L.
Bond et al. v. First Nat'l B'k

Santa Fe...................
Brown et al. Higgins v........
206
338
184
395
VO. V. . . . . . . . . . . . . . . . . . . . . . .
Boughton, Peo
Boughner v. Meyer............
Bradbury et al. v. Davis....... 265
Bradbury et al. v. Davis........ 341
Brown v. Willoughby..........
30
Colorado Natl B'k of Denver v.

Bottcher................... 185
1
345
Brown v. The State............ 496

Burns, McClelland et al. v... . . 390
C
Campbell, Wike et al. v........ 126

Castagnio, LeFevre v... . . . . . . . . 564
Central & G. R. Co. v. People ex
rel. Taylor.............. . . . .
Crane et al. v. Chandler........ 21

Crisman v. Heiderer............ 589
Curley, People ex rel. v........ 412
Cushman, Bissel et al. v....... . 76
D
Darnell, Gordon et al. v........ 302
Davis, Bradbury et al. v........

Davis, Bradbury et al. v........
Derry v. Ross et al.............
26.)
341
295
Dickson v. Moffatt............. 114
Duff et al. Home et al. v........ 574
# et al. # et al. v........ #

uggan et al. Ross v...........
Dunn v. Ghost. . . . . . . .
(v)
- -
- - - -
- -
"
1%
vi
SUPREME CoURT of ColoRADo.

PAGE
E.
PAGE
Hopkins, Colorado Springs Co. v. 3:33

Horer v. Stout................. 166
Eddy v. Hall.................. 576

Eicholtz, Wilber et al. v. . . . . . . . 240
Hughes v. The People... . . . . . . .
4:36
508
Humphrey, Impl. etc. v. Mooney, 282
Epley et al. v. Scherer.......... 536

Eshe
et al. exr's, Charles v... 107
Ex Parte White............... 521
In re Roberts.................. 525
Elkin v. The People. . . . . . . . . . .

Elliott, Judge, etc. Union Colony
et al. v.................
- - -
Hurd et al. v. Smith. . . . . . . . . .

* * *
Huston et al. v. I. Wadsworth . .213
I.
F.
K.
Fassett et al. v. Mulock . . . . . . . . 466
Filley, Cody v. ................

Finn
124
et al. v. Fritz . . . . . . . . 174
First Natl B'k of Santa Fe, Bond

et al. v................. . . . . .
Fisher v. Greene...............
Fraker, Morris v. . . . . . . . . . . . . . .
Fritz, Finnerty et al. v. . . . . . . . .
8.
541
4.25
174
Fuller et al. v. Swan River P. Co. 123
K. P. R'y Co. Behrens v. . . . . . .

Keystone M. Co. et al. v. Galla
gher et al...................
400
2:;
Knox et al. McFarran v........ 217

L.
I'
Co. L. I. Co. Cowan et
all . . . . . . . . . . . . . . . . . . . . . . . . . .
Lea et al. Colo. Cent. R. R. Co.
V. . . . . . . . . . . . . . . . . . . . . . . . . . .
Gallagher et al. Keystone M. Co.

et al. v. ....................
Ganebin, Phelan, Impl., etc. v. ...
14
192
LeFevre v. Castagnio. . . . . . . . . . 564

Londoner, Smith et al. v. . . . . . . . 365
Lutterel et al. v. Swis her. . . . . . .
54
Gamebin v. Phelan, Impl., etc... 83

George v. Tufts. . . . . . . . . . . . . . .
George, Willoughby v. . . . . . . . .
162
80
Ghost, Dunn v. . . . . . . . . . . . . . . . 1:34

Givens V. Wheeler, Adr, etc. ... 598
Gomer v. Chaffee. . . . . . . . . . . . . . 383
Gordon et al. v. Darnell. . . . . . . . 302
Green et al. v. Morrison. . . . . . . . 18
Greene, Fisher v............... 541
H.
- - - -
- - - *
- - -
37
lo Co.... . . . . . . . . . . . . . . . . . . . 125
Hake, Guardian, v. Stotts' Ex'r 140

Hall, Eddy v. . . . . .
576
- -
McGauhey, Alvord et al. v......

McLaughlin, Martin v...... . . . .
244
3 S7
M.
Haas et al. v. Board C. C. Pueb

Haas,
Mc.
McClelland et al. v. Burns. . . . . . 50t
McFarren v. Knox et al... . . . . . . 217
McGan et al. v. O'Neil... . . . . . . 43.3
McGan et al. v. O'Neil. . . . . . . . . 58
- - - -
- - - -
- -
Hawley v. Barker.............
Hedges, Morgan v. .............
118
50
Heiderer, Crisman v. ... . . . . . . . 589
Henderson, ad"r, Becker, Impl.,

etc. v. ...
184
Hexter v. Clifford.............. 168
Higgins v. Brown et al........ . 345
Hewitt v. Colorado Springs Co..
Highland Ditch Co. v. Mumford 325
Manning v. Haas..............
37
Martin v. McLaughlin.... . . . . . 387

Mattison v. Childs et al. . . . . . . . .
78
Meyer, Boughner v. . . . . . . . . . . . 71
Meyer et al. v. Binkleman. . . . . . 13.3
Meyer et al. v. Binkleman. . . . . . 262
Moffatt Dickson v. . . . . . . . . . . . . . 114
Mooney Humphreys, Impld, etc. 282

Morgan v. Hedges. . . . . . . . . . . . 50
Morris v. Fraker.... . . . . . . . . . . . 425
Morrison, Green et al. v. . . . . . . . 18

Mulock, Fassett et al. v. . . . . . . . 466
Mumford, Highland Ditch Co. v. 325

Murphy v. Cobb et al.......... 2S1
Holmes, Colo. Cent. R. R. Co. v. 516

Holmes Colo. Cent. R. R. Co. v. 197
Home et al. v. Duff et al....... 574
Home et al. v. Duff et al. . . . . . . 344
Hopkins, Colorado Springs Co. v. 206
O.
O'Neil, McGan et al. v. ... . . . . . 433

O'Neil, McGan et al. v......... 5S
Vll
PAGE
PAGE
Smith, C. C. R. R. Co. v ....... 160
P.
Patton, Barndollar et al. v. ....
29
Hatton, Barndollar et al. v., p.
46
Smith, Hurd et al. v...........
... I '.
' g|#
# ##": #|s'Anthony #####
Co.
# # v. Curley........v. #
' |########"
ney
582
. UO. etc. V. "I'ler-
eople, Hughes v. ... . . . . . . . . . .

People,
W. . . . . . . . . . . . . 276
People ex rel. v. Rucker. . . . . . . 455
J arte.......
Phelan, Impld, etc. v. Ganebin. 14
''''"'.'s parte. . . . . . .
. ..;
; ; , . . . . . ;... . . . . . .
# r, Hake, Guardian v... #

50%
#|########
Pollard v. Shively et al. . . . . . . . . | Swisher, Lutterell et al. v......
ipe v. Smith................. 1
... we
--
W -
- -*
54
P: & A. W. R. R. Co. v. Rudd 270
et al......... . . . . . . . . . . . . . . .
Tierney, St. L. & M. Co. etc. v. 582

of v. Simpson..
# ''
R.
Riddell et al. v. Animas Canon
T. R. Co.................... -2:30
Roberts,
T. Derry
H. inv.re.
Ross et al.
. . .. .. .. .. .. .. .. .. .. ..
525
295
Ross v. Duggan et al........... 85

Rucker, People ex rel, v. . . . . . . . 455
R:
et al. Pueblo & A. W. R. R. 270
O. V. . . . . . . . . . . . . . . . . . . . . . .
ritch et al. Allen v. . . . . . . . . . . .
2:
Tufts, George v...............
162
U.
Union Colony of C. et al. v. El

liott, Judge, &c............ ...
371
W
-
Wadsworth,
Huston
et al. v....'.
v... . 213
Wheeler,
adr,
etc. Givens
598
S.
Scherer, Epley et al. v. . . . . . . . . . 536 | White ex parte.... . . . . . . . . . . . . 521

W.
lins . . . . . . . . . . . . . ... 492 W' 'i '' al....... #
Seigel, Wooton v. . . . . . . . . . . . . . 424
ilber et al. v. Eicholtz. . . . . . .
Shively et al. Pollard v. . . . . . . . . 309 | Wike et al. v. Campbell........
Simpson, The Town of Trinidad

W .. . . . . . .. . . . . . . . . . . . . .. . . ..
Sloan, Board of C. C. Pueblo Co.

W. . .. . . . . . . . . . . . . . . . . . . . . . ..
Willoughby, Brown v. . . . . . . . . .
65 | Willoughby v. George. . . . . . . . . .
Wooton v. Seigel....... . . . . . . .
Wyman v. Colo. Nat'l B'k.....
126
1
80
424
30
TABLE OF CASES CITED.

rnoxr.
Abbott v. Monti _ , , _ . . . . . . . . . .. 58
Abbott v. Omaha, _ _ , _ _ , _ _ . , . . . . 284
'
PAGE
Barron v. Mason . . . . . . . . . . . . . . 10
Barton v. St. L. & I. M.R. R. Co. 404
Adams v. Hackett . . . . . . . . . . . ..
Etna N. B. v. Fourth N. B... ..
Aldrich v. Cooper. . . . . . . . . . . . . .
Aldrich v. Dunbar . . . . . . . . . . . . .
Allain v. Hartshorne . . . . . . . . . . .
Allen v. Clark . . . . . . . . . . . . . . . . .
Allamnn v. The Mayor, etc. . . . .
Babchelor v. Albany City Ins. Co.

Bates v. Ruddick . . . . . . . . . . . . . .
Bntfersby v. Abbott . . . . . . . . . . . .
Bayer et al. v. Easpie . . . . . . . . . .
Bayley v. Homan . . . . . . . . . . . . . .
Igeemis v. Ilieonard . . . . . . . . . . . . .
ergerv.v. Berligns
-1g . . . . . . .. . . . . . . ..
..
Berlin
170
189
101
121
34
470
-588
Z16
470
38-"1
499
4%..-">
362
Allsfon v. Mumford . . . . . . . . . . .. 102

Alvord v. McGu.nghey . . . . . . . . . . 386
Anderson v. Sloan . . . . . . . . . . . . . 127
Anderson v. Weiser . . . . . . . . . . . 176
Anderson v. Warren . . . . . . . . . .. 243
Andre v. Jones . . . . . . . . . . . . . . . . 123
Andrews v. Murray . . . . . . . . . . . . 368
Abchison v. Peterson . . . . . . . . . 298
A. T. & S. F. R. R. Co. v. The
People . . . . . . . . . . . . . . . . . . . . . . 489
A. T. 8: S. R. R. Co. v. The Al:ty
nl . . . . . . . . . . . . . . . . . . . . . .. 171
Atns v. Stale . . . . . . . . . . . . . . . . 280
Atkinson v. Brooks . . . . . . . . . ..34-36
Atlas M. Co. v. Johnson . . . . . . .. 71
Aurora. v. West . . . . . . . . . . . . . .. 73
Babcock v. Hawkins . . . . . . . .483-485
Bacon v. Towne et al . . . . . . . . . 10-12
Bagley v.' Morrill . . . . . . . . . . .31-3-317
B leyv.Ward . . . . . . . .
2->6
Bgey v. Bnucker. . . . . . . . . . . . . . 367
Bailey v. Johnson . . . . . . . . . . . . . 539
Bailey v. Tabor . . . . . . . . . . . . . . . . 73
Baker et nl. v. a.<lmrs of Backus. 285
Bank v. Jacobs . . . . . . . . . . . . . . . . 101
Bank of Metropolis v. New Eng~
gland Bank . . . . . . . . . . . . . . . . . 34
Bunk of Republic v. Carrington.
. . . . . . . . . . . . . . . . . . . . . . . ._ 34, 36
Bunk of Re ublic v. Millard. . . . 189
Barker v. Hgwley . . . . . . . . . . . . . . 117
Barney v. Myers, . . . . . . . . . . . . . . 470
Billings v. Vanderbeck. . .. 477, 478

Black v. Woodson . . . . . . . . . . . .. 588
Blackburn v. Ormsby . . . . . . 480, 486
Bledsoe v. Graves . . . . . . . . . . .'.. 135
Bochlert et al. v. McBride... . . l8l
Bowman v. Wood . . . . . . . . . 355, 357
Boyer v. Sweet . . . . . . .
432
Boynton v. Champlain
342
Boynton v. Curle. . .
Bradley v. Gregory.
Bradshaw v. Davis. . . . . . . . . . .
Brady v. Spurk . . . . . . . . . . . . . . ..
Brandas v. Barnett . . . . . . . . . . ..
Brennan v. Ford . . . . . . . . . . . . ..
Broad v. Murray . . . . . . . . - - . . ..
Brooks v. Norris....'. . . . . . . . . ..
Brooklyn Bank v. DeGramo. . ..
Brown v. European & N. A. Ry
Co . . . . . . . . . . . . . . . . . . . . . . . . . .
Brown v. N. Y. C. R. R. . . . . . ..
269
34
173
396
81
479
404
517
Brown v. Marlin . . . . . . . . . . . . .. 173
Brown v. Simms . . . . . . . . . . . . . . .
Brush v. Scribner . . . . . . . . . . . . . .
Buffalo R. R. Co. v. Ca.rey.. ...
Burch v. Hurdwicke . . . . . . . . . . .
Burch v. Scott . . . . . . . . . . . . . . . ..
Burlei h v. Piper . . . . . . . . . . . . . .
B. &
R. R. v. Bartlett . . . . ..
Burrou he v. McNeill . . . . . . . . ..
Butholg v. Goldsmith . . . . . . . . ..
Butler v. Walker . . . . . . . . . . . . . .
Butteriield v. Smith . . . . . . . . . . .
(ix)
470
34
2*"!
421
4'H
2->7
305
299
571
I167
260
SUPREME CourT OF COLORADo.
PAGE
PAGE
Campbell v. Foster............ 172 | Covanhoven v. Hart ... . . . . . . . . 10:}
Capelli v. City of Denver. . . . . . . 105 | Craig v. Wells. . . . . . . . . . . . . . . . 504

Carl v. National Sec'y Bank. ... 189 | Crump v. Morgan. . . . . . . . . . . . . . 350
Carlisle v. Cooper.............
299
Carlisle v. Stevenson. . . . . . . . . . . 594
Culver v. Third N. B'k of Chica
Carpenter v. The City of Oakland
Curtis, ex parte................ 451

Cutler v. Haven . . . . . . . . . . . . . . . 469
157, 268
Carpenter v. Williamson.......
8
-
- - -
- - *
* *
* -
- - -
- - - -
- - -
g0. . . . . . . . . . . . . . . . . . . . . . . . . .
Carr v. Duval................. 305 |

Carr v. Hilton................. 157 |
Cartwright's case........ . . . . . . 45%
Case v. Henderson............. 189 |
Darrier v. Darrier.... . . . . . . . . . . 362

Davis v. Butler. . . . . . . . . . . . . . . . 301
Davis v. Fairburn ... . . . . . . . . . . 131
Davis v. Neligh. . . . . . . . . - - - - - - 1:37
Castello v. St. Louis Circuit Court 374 Day v. Hall... . . . . . . . . . . . . . . . . 357
Catlin v. Doughty. . . . . . . . . . . . . 170 | De Armond et al. v. Adams et al. :
Central & G. R. Co. v. People
Deits v. City of Central.........
422
61, 63 | Delafield v. State. . . . . . . . . . . . . .

C. P. R. R. Co. v. Pearson . . . . . . 27
De Lamar et al. v. Hurd. . . . . . . .
Charles v. Davis. . . . . . . . . . . . . . . 138 || Delaware & H. Canal Co. v. The
Charles v. Eshleman.... . . . . . . 114
Penn. Coal Co...............
Charlton's Case................ 447 | De Leyster v. Hildreth.........
Chase v. Woodbury. . . . . . . . . . . . 470 Den v. Fen. . . . . . . . . . . . . . . . . ...
497
44
- - -
- - -
- - - - -
- - - - -
- - - -
- -
Chautauque Co. Bank v. Risley. 17 | Deputy v. Stapleford. . . . . . . . . . .

Cheeseborough v. Millard. . . . . . 101 | Detroit & M. ' R. Co. v. Wan
Child v. Chaprell.............. 499
Steinberg...................
Child v. Smith. . . . . . . . . . . . . . . . .352 | Dickey et ux. v. Main Tel. Co...
Christ v. The People....... . . . . 451 | Dickey v. Thompson. . . . . . . . . . .
Christie v. Craige............. 485 Doolittle v. Ferry. . . . . . . . . . . . . .
Claflin v. Carpenter. . . . . . . . . . . . 581 | Doughty v. Devlin. . . . . . . . . . . ..
Claremont v. Carleton...... 315, 316 | Douglas v. Parker. . . . . . . . . . . . .
Clark v. Bancroft............. 102 | Douglass v. Cassidy. . . . . . . . . . .
292
101
357
405
404
470
138
539
127
357
Clark v. Field................. 350 | Dow v. Rattle. . . . . . . . . . . . . . . . 77
Clark v. Gridley. . . . . . . . . . . . . . .
8
Drew v. Swift. . . . . . . . . . . . . . 315-317
Clark v. Merchants Bank. . . . . . . 34 | Duggan v. Gittings. . . . . . . . . . . . 131
Clarket al. v. Merchant's Bank.. 36 | Dunscombe v. Prindle......... 528
Clark v. Wethey.............. 313 | Dunton v. Montoya. . . . . . . . . . . . 69

Clifford v. Keating. . . . . . . . . . . . 138 | Dupuy v. Shear............... 47
Cochran v. Arnold. . . . . . . . . . . . . 235 | Duryea v. Burt................ 112
Cody v. Butterfield............
39
Cody v. Filley................. 246 | Early v. Doe......

358
Coit v. Houston. . . . . . . . . . . . . . . 480 | Easter v. Minard.............. 243
- - - - - - - - - -
- -
Columbian Book Co. v. DeGollyer 17 | Eaton v. Aspinwall............

Columbus Turnpike Co. v. HayWOOC1 - - - - - - - - - . . . . . . . . . . . . . .
288
Eggleston v. Buck...
... 127
357 | Eld v. Gorham................ 528
Commercial Bank etc. v. State of

Eldred v. Malloy........ . . . . . . 7.)
Miss... . . . . . . . . . . . . . . . . . . . . . 42 | Eliam v. Henshaw. . . . . . . . . . . . . 305
Com. Bank, etc. v. W. B. Bank 470 Emmons v. Bradley........ 101103
Commonwealth v. Clark........ 282
Emmens v. Elderton. . . . . . . . . . . 588
Commonwealth v. CommissionErnst v. Hudson River R. R. Co. 404
ers, etc.. . . . . . . . . . . . . . . . . . . . . 42 Esmay v. Gorton.............. 305
Commonwealth v. Dandridge... 447 | Estes v. Furlong.....
305
Com onwealth v. Lesher...... 278 | Evans v. Brown. . . . . . . . . . . . . . . 528
Commonwealth v. Webster..... 279
Conner v. Conner............ . . 185 | Everhart v. Searle............ . 176
Conroe v. Bull................. 65 | Fairbanks v. Wood. . . . . . . . . . . . 359
Cook v. Oxley................. 305
Farnham v. Brooks............ 159
Copper Hill
Co. v. Spencer... 385 Farwell v. Jackson....... . . . . . 173
Corson v. Mulvany............. 305 || Faulk v. Kellums....... .....77. 245
- - - - - - - - -
M.
TABLE OF CASEs CITED.

PAGE
Xl
PAGE
Fay et al. v. Noble et al........ 290 Haight v. Joice. . . . . . . . . . . . . . . .

Ferlan v. Gojan........
350 | Harpham et al. v. Whitney. . . . .
- - - - - - -
Field v. Jones.................
Filley v. Cody.............. 127.
Finley v. Stere. . . . . . . . . . . . . . . .
Finley v. Williams. . . . . . . . . . . .
5
10
17 | Harrell v. Harrell. . . . . . . . . . . . . 131

435 | Harrison v. McKim. . . . . . . . . . . . 1:29
239
316
189
Fisher v. Philadelphia......... 71
Fithian v. N. Y. & E. R. R. Co. 17
Fleet v. Young......... ..... 8182
Folger v. Columbian Ins. Co.... 17
Fordyce v. Godman........... 528
Fornshell v. Murray. . . . . . . . . . . 350
Forsythe v. Warren... . . . . . 355357
Fouke v. Fleming.............. 529
First N. Bk v. Whitman... . . .
||
|
|
|
|
|
|
Harrison v. Phillips's Academy. 10)

Harvey v. Childs. . . . . . . . . . . . . . 572
Harvey v. Martin. . . . . . . . . . . . . . 19 |
Hastings v. Cunningham....... 215
Hawley v. Barker........ . . . . . 124
Hawley v. Foote. . . . . . . . . . . . . . 478
Heard v. Case. . . . . . . . . . . . . . . . . 593
Hearn v. Curran............... 485

| Hearn v. Kiehl. . . . . . . . . . . . . . . . 48
| Heaston v. Cincinnati, etc., R. R.
Co.........................
Francis v. Wells............... 60 | Heaton v. Myers. . . . . . . . . . . . . .
Frank v. Miner................ 166 | Henkle v. Alslatt. . . . . . . . . . . . :
Frantz v. Fleitz............... 514 | Henley v. Wadsworth. . . . . . . . . .
284
2:39
470
540
Frink et al. v. Ryan. . . . . . . . . . . 137 | Henry et al v. R. I. L. Works... 165

Frost v. Johnson. . . . . . . . . . . . . . 479 | Herman v. Martineau. . . . . . . . . . 176
Frost v. Raymond............. 239 | Herrick v. Smith. . . . . . . . . . . . . . 510
Frost, Lessees of, et al. v. FrosHexter v. Clifford e1 al. . . . . . . . . 226
burg Coal Co................
Hihn v. Peck... ..............
8
Fuller v. Rowe............... 289
Hildreth v. McIntire. . . . . . . . . . . 285
Fulton v. Fulton. . . . . . . . . . . . . . 350 | Hinckley v. Arey. . . . . . . . . . . . . . 181
Holden v. Pike. . . . .
. 470
Ganebin v. Phelan. . . . . . . . . . . . . 49 Hooper v. Winston
... 18
Gannon et al. v. Fritz. ...
. 67 | Hoyt, ea parte. . . . . . .
... 373
Gardner v. The Collector..
528 Hubbard v. Chappel. . . . . . . . . . . 285
Garner v. Johnson . . . . . . . .
. 357 Hubbard et ux v. Chappel...... 290
Garrett v. Stephenson.....
. 59 Hughes v. Washington......... 434
Gasper v. Bennet.............. 226 || Humphreys v. Crane et al.......
Gates v. The People............ 278 || Humphries v. Parker...........
79
12
Gee v. Scott................... 362 | Hunter v. Sherman... . . . . . . . . . 211
Gibson v. Seymore. . . . . . . . . . . . . 100 | Hurd v. Case.................. 228

Gleason v. Martin White M. Co. 317
Glenn V. The Farmers B'k of N.
Iglehart v. Crain... . . . . . . . . . . . 470
C.. . . . . . . . . . . . . . . . . . . . . . . . .
I. & C. R. Co. v. Rutherford. . . . 205
Golden Fleece v. Cable ConsoliIll. Cent. R. R. Co. v. Godfrey. . 520
dated, etc. Co............... 317 | Ill. Cent. R. R. Co. v. Hall..... 20
Gonzales v. N. Y. & H. R. R. Co. 403 Ill. Cent. R. R. v. Hammer..... 199

Good v. Cheesman............ 485 | Ingraham v. Gildermester. . . . . .
8
Good v. Webb. . . . . . . . . . . . . . . . 360
Irwin v. Davidson. . . . . . . . . . . . . 298
Goodman v. Simonds. . . . . . . . . . 75
Goodrich v. Warner............ 12 || James v. Hubbard. . . . . . . . . . . . .
Graff v. Bennett.............. 172 | Jenkins v. Freyer. . . . . . . . . . . . . .
Graham et al. v. LaCrosse & M.
Jenness v. Lane...............
R. R. Co................... 170 Jensen et al v. Brown. . . . . . . . . .
Grant v. Townsend............
Jenne v. Ward................
Green v. Wallace.............. : 28 Johnson v. Barber. . . . . . . . . . . . .
Greene v. Ramage............. 470 Johnson v. Johnson. . . . . . . . . . . .
470
470
483
540
190
124
159
Gridley v. Bane............... 243 | Jones v. Cin. Type Foundry.....

Griffith v. Bogart.............. 359 | Jones v. Perkins. . . . . . . . . . . . . . .
2.85
485
Griffith v. Lovell.............. 470 | Jones et al. v. Smith. . . . . . . . . . . 228
Grim v. Norris................ 215 Jones v. Myreck. . . . . . . . . . . . . . . 470
Guion et al. v. Knapp et al.. 102,470
Jumpertz v. The People........
509
Xll

PAGE
PAGE
K. P. R'y Co. v. Brady......... 406

K. P. Ry Co. v. Ward....... ... 205
Keen v. Waughan's Exrs...... 4S0
McDowell v. Stewart..........
Keeton v. Keeton..... ......... 157

Kelley v. Hendrie............. 403
McQuellan v. Donohue. ........ 386
Kellogg v. Richards....... 478-483
Kelsey v. Murphy......... . . . .
Kennedy v. Williams..........
Kerfoot v. Hyman. . . . . . . . . . . . .
122
264
176
Kerwacker v. The C. C. & C. R.

Co.......................... 432
Kimball v. Tanner............. 77
King v. Cunningham.......... 119

King, The v. The Justices. 359-374
King, The v. Francis........... 42
Kinney v. Crocker.............. 17
Kinsley v. State............... 246

Kirtley v. Marshall S. M. Co... 435
Kitchen
Knox et
Koch v.
Kromer
v. Watson. . . . . . . . . . . . 165
al. v. McFarran. . . . . . . 222
Howell. . . . . . . . . . . . . . . . 191
v. Heim. . . . . . . . . . . 478-485
Langhoff, Adm'r v. The Mil. &

Pr. du. Ch. Ry Co. . . . . . . . . . . 405
Larabee v. Baldwin. . . . . . . . . . . . 370
La. State Lottery v. Richoux... 528
Latapee v. Pecholier............
Lanson v. Patch. . . .
.
Leavitt v. Putnam
.
Lee v. Pile....................
Lee v. Tillotson................
22
McKinney v. People............ 509

McIntire v. Belcher............
# Co.M.
- - - - - - - -
588
agrath v. Magrath........ . . .
Manning v. McClure........... 34
March v. Wright.............. 165
Martin v. Cole................
Martin v. Force ...............
Mason v. Barff............... .
Mav v. Hanson....... . . . . . .
Mellor v. Walentine............
Merriman v. David............
136
3S5
190
79
27
176
Mich. C. R. R. Co. v. Campau. . .410

Miller v. Furse................ 299
Miller & Gibson v. State...... ... 534
Minard v. Beans........... ... 118
Mokelumne H. M. Co. v. Wood
bury. . . . . . . . . . . . . . . . . . . . 284, 295

Molandin v. C. C. R. R. Co. 105, 488
Moline W. P. & M Co. v. Web
ster . . . . . . . . . . . . . . . . . . . . . . . . 110
27
Monroe v. West. . . . . . . . . . . . . . .
485
581
Moody v. State................ 528

Moore v. Green................ 157
Moore v. Moore.........
362
Moore v. U. S. . . . . . .
244
137
Morgan v. Clayton....
13
Moses v. Franklin Bank..
269
217
Legg et al. v. The Mayor... . . . . 528
v. Simonton......... 20, 172
Leroy v. Platte................ 299
Levy v. Brannan.... .......... 12
Lewis v. The Baltimore & O. R.
R. Co................... ... , 520
Moses v. Bierling et al...

179
Mullen v. Keetzleb. . . . . . . . . . . . . 176
Munn et al. v. Burgess......... 181
Ligett v. Weed. . . . . . . . . .......

Lloyd v. Colston & Moore......
191
176
O'Connor v. Leddy.......... ... 514
Lock v. Mabbett............ ... 172
Ophir S. M. Co. v. Carpenter.... 336

Osbourne et al. v. Staley et al... 528
Logan v. Gadney..............
4:22
Loomis v. Tifft................ 226
Love et al. v. Miller............ 179
Ludlow v. Simond............. 299
Niantic B'k et al v. Dennis.... 221

North Pa. R. R. Co. v. Hillman. 404
Ohio & P. R. R. Co. v. Wallace. 27
Overton v. Conner ............. 479

Pacific R. R. v. The Governor. .. 529
Lundin v. K. P. Ry Co. . . . . . . . 276
Pa. R. R. Co. v. Ogier.........
Lurvey v. Wells, Fargo & Co.... 385
Pahlman's Ex'r v. Graves...... 110

Paige v. Smith et al.......... . 17
Palmer v. Foley..... * * * * * * * * * 62
Pangborn v. Young............ 528
Parkman v. Welch............ 70
Parks v. Holmes. . . . . . . . . . . . . . . 239
Lyles v. State................. 71
Lynch v. Fallon.....
176
Lynch v. Johnson.............. 170
- - - - - -
- -
Jyman v. Lyman..............
470
McClure v. Ashley...... . . . . . . . 159 | Patten v. Coan & Ten Broeck, C.

McConnell v. Reed. . . . . . . . . . . . . 269
M. Co................ . . . 39,
McCormick v. Hadden. . . . . . . . . 16.5 Patty v. Pease........... . . . . .
McCoy v. Galloway............ 316 Paul v. Leavitt................
McCullough v. Clark. . . . . . . . . . . 170 Payne v. Sheldon..............
McDonald v. Crockett.......... 299 Peaslee v. Gee................
406
210
470
362
226
315
X111
PAGE
PAGE
Peck et al v. Wilson........... 211 | Rycraft v. Rycraft.............
Penhollow v. Doane...... ... ...
499
Perkins v. Hadsel........ ..... 305 | St. Paul, The warden of v. The
Pettis v. Ray.................. 480

Dean.......................
People, The v. Arcio........ 71, 279 | Sammis v. Clark. . . . . . . . . . . . . .
119
I19
v. City of St. Louis. 497 Schneider v. Seibert...........

v. Cook ........... 42 | Scherer v. Teller..............
v. Devlin.......... 528 Schuttler v. Prate.............
434
474
135
Scribner v. Collar............. 176
v. Draper..
.... 458
v. Fisher.......... 461 | Seaman v. Hogeboon..
316
432
v. Starne....
Shanon v. Marsells
470
v. Stewart.
Shaw v. Carbray...
581
v. Turner......... 131 | Sherman v. Story..
528
v. Utica Ins. Co... 42 | Sheets v. Selden......
360
v. Wilson. 279, 446, 453 | Shepherd v. Adams............ 470
People, The ex rel. etc. v. HurlShepherd v. Hedden...... ..... 176
burt........................
Shopshire v. Glasscock et al.... 74
People, The ex rel etc. v. LangShort v. Miller......... . . . . . . . 181
don . . . . ....... - - - - - - - - - - - Siegel v. Gould................ 176
People The ex rel. etc. v. KeelSkeil v. Sparks.............. . 470
ing. . . . . . . . . . . . ......
489 Skillman v. Lackman.......... 112
v. Mahaney........
- -
....
.
.
.
.
...
Seeley v. Peters......
- - - - -
Phelan v. Gardner............. 179 | Slocum v. Providence, &c. Co... 285
Phelan v. Olney...............
Phillips v. Quick..............
469
514
Small v. Edrick. . . . . . . . . . . . . . . 357

Smith v. Keele. . . . . . . . . . . . . . . . 479
Pierpont v; Crouch............ 41
Smith v. Pipe..................
Pim v. Nicholson..............
Smith v. Richmond........... . 263

Smith v. Tyson. ...... * * * * * - - - 34
Smith v. Wilson. ... . . . . . . . . . . . 127
41
Pipe v. Smith.............. 156, 268

Pittsburg R. R. Co. v. Andrews. 205
162
v. McClerg... 205 | Southwark Bank v. Common

Porter v. Dement............ 22, 166
wealth. . . . . . . . . . . ........... 528
Powers et al. v. McCord et al... 25 | Stadwell v. Rich............... 432
Prescott v. Williams........... 596 | State v. Barcker............... 464
Prideaux et ux. v. The City of
Hastings. . . . . .
65
Mineral Point............... 404
Marshall.............. 71
Pridger v. Adkins............. 181
Mead............ . . . . . 528
Messmore.............
3
Morrell
Queen, The v. Justices......... 359
- -
- -
- - -
R. R. Co. v. Jones............. 200

Raisin v. Clark................ 176
Reed v. Bernal...?............
8
Renn's Glass Factory v. Reid... 119

Reynolds v. McCormick....... . 54
Rice v. Wood.................
Ricehart v. McClure...........
Richardson v. Abendroth..... .
Richardson v. Hugitt........ ...
Richardson v. McNulty..... ...
176
222
. Warman. . . . . . . . . . ...
4's
State, ex rel. etc. v. County Court 464
v. Seay...........
V. S
490
2
368
573
.301
Steamboat New World v. King 199

Stephens v. Coffin............. 434
Robinson, arte. . . . . . . . . . . .
Rogers v. Dickey............
Rondell v. Fay.......... ... ... 285
Stephens v. People............ 509

Sterling v. Maitland........... 588
Stevens v. Hinckley........ .... 101
Rowley v. Hughes............. 343
Stevenson v. McLean.......... 305

Stewart v. Mather............. 176
Stocking v. State........ ...... 463
Stone v. Crocker.............. . 12
Stowe v. Flagg..........
285
Rush v. Casey..... . . . . . . . . . ...

8
Russell v. Lytle................478
Rutledge v. Grant: ............ 305

Ryan v. Atlantic Ins. Co....... 216
xiv
SUPREME Court of CoIORADo.

PAGE
PAGE
Stowe v. Flagg et al........... 290
Veazie v. Williams............. 15
Vermute v. Shaw. . . . . . . . . . . . . . 3-6
s: et al. v. Marshall S. M.
O . . . . . .. . . . . . . . . . . . .. . . . .
Village of Glencoe v. The People 374
Sturoc's case.................. 453
Winton v. Peck................ 243

Wose v. Woodford............. 265
Waldron v. Marsh............. 594
Sublette v. Tenney......... 157, 268
Walsh v. Boyle............ 357, 359
Sullivan v. Brewster... . . . . . . . . 539

Supervisors v. Keenan . . . . . . . . . . 528
Swartz Exrs v. Lerst...... ... 469
Sweeney v. Easton. . . . . .
... 36
Swift v. Tyson................ 75
Walsh v. Commonwealth....... 464
Stuart v. People.... . . . . . . . . . . . 446

Sturgess v. Burton.... . . . . . . . . . 263
Wapello, The County of, v. Bing

ham. . . . . . . . . . . . . . . . . . . . . . . 79
Ward v. Enders. . . . . . . . . . . . . . . 226
Warren v. Matthews. . . . . . .
212
Washington College v. Duke.. ..

Tarbell v. Page. . . . . . . . . . . . . . . 295
v. Page et al........... 285
Tarbell v. People et al......... 290
Tatman v. Strader. . . . . . . . . . . . .
74
Taylor v. Columbian Ins. Co....

Taylor v. Gillian..............
17
17
Taylor's Exec'r v. Maris.......

Teft v. Ashbaugh. . . . .
102
282
Waters v. Moss.... . . . . . . . . . . . .
Watson v. Thrall.... . . . . . . . . . .
Weaver v. Fries. . . . . . . . . . . . . . .
Weed v. Bond................
Welch v. Darrah.... . . . . . . . . . .
Wellman In re. . . . . . . . . . . . . . . .
Wells v. Morton . . . . . . . . . . . . . . .
4:32
124
136
7.3
216
Thatcher v. Rockweld.......... 395

Thayer v. Union Tool Co....... 863
Thomas v. Afflick. . . . . . . . . . . . . 357
W. U. Tel. Co. v. Eyser........

Whipple v. Parker............
528
15
200
289
White v. Gray. . . . . . . . . . . . . . . .
Whitney v. Belden............
479
434
- - -
- -
Thomas v. Industrial University 540
Whittaker v. Des Fosse . . . . . . . . 216
Tilton v. Alcott............... 478
Whittle v. Frankland..........
Tobey v. Foreman... . . . . . . . . . .
Todd v Old Colony R. R. . . . . . .
Wickoff v. Davis. . . . . . . . . . . . . . 470
594
205
Townsend v. Hendricks........ 216

Trask v. Roberts. . . . . . . . . . . . . . 136
Troupe v. Smith...............
159
Tuft v. Warman .... . . . . . . . . . . 200

Twitchell V. The Commonwealth 217
588
Wightman v. Wightman...... 350

Williams v. Benton. . . . . . . . . . . . 215
Williams v. Bookhead......... 227
Williston v. Fisher et al. . . . . . . 125
Willoughby v. George.........
- -
- -
- - - - -
- - -
81, 83, 276, 184
Wilmarth v. Montford......... 10
Wilmerding v. Russ........... 157
Wilson v. Forsyth............. 226
Wilson v. McDowell. . . . . . . . . . . 127
Umstead v. Buskirk. . . . . . . . . . .
Union Gold M. Co. v. R. M. Nat.
B'k ........................
U. P. R. R. v. Rollins..........
U.S. v. Cornell.... . . . . . . . . . . .
v. Parrott...
. ..
Uther v. Riche...........
.
370
Vallett v. Parker . . . . . . . . . . ....

Van Dukam v. Wan Dukam....
Van Lean v. Kline.............
Warin v. Edmondson....... 354,
Vassant v. Edwards........... .
73
239
Wortman v. Skinner........... 181
258
Young v. Cook.........
159
Young v. Jones............... 479
199
279
298
75
Winne et al. v. Colo. Springs Co.

Wooley, In re...........
. . 446
Worthen v. Badgett...........
357
305
78
Wintermute v. Post............ 192
Woodworth v. Payne.... . . . . . . 504
- -
52>
- - -
Young v. Ward...............
242
PROCEEDINGS
IN THE
SUPREME COURT OF COLORADO.

UPON THE DEATH OF
HON. JOHN Q. A. KING.

iii
Upon the opening of the Supreme Court on the 12th day of

March, A. D. 1880, the same being one of the days of the regular
December Term, A. D. 1879, G. G. Snrss Esq., addressed the
Court as follows :
May it please your HonorsThe 1st day of March inst., at a. meet

ing of the members of the Denver Bar, to take action on the decease
of the late Jonx Q. R. KING, I was deputed topresent the follow

ing resolutions adopted at that meeting to this Court, and ask that
they be spread upon its records:
WHEREAS, By the direction of Providence, John Q. R. King,
an esteemed member of this bar, has been called to depart this life,
Resolved, That we bow with reverence in this bereavement.
Shall not the Judge of all the_earth do right?
Resolved, That in the death of John Q. R. King, this bar has
lost one of its brightest ornaments, one of its strongest and most
brilliant advpcates, and one of its most warm-hearted, pure, and

exemplary men.
Resolved, That his death is a loss to the State at large, for he
was eminently tted by his great ability, noble character, and
varied experience, to render invaluable assistance in building up
our State institutions upon the broad foundations of justice and
morality.
Resolved, That to his family we extend our warmest sympathy
' (Xv)
3(VI
SUPREME CoURT OF ColoRADo.

Proceedings upon the death of
Hon. John Q. A. King.
and express to them our high appreciation of the character and

virtues of their husband and father.
To them his death was the
falling of darkest night upon the splendors of brightest day. In

their widowhood and orphanage they have our sincere sympathy.
T. M. PATTERSON,
I. E. BARNUM,
C. W. WRIGHT,
Committee.
G. G. SYMEs,
J. T. DEw EESE,
It is with feelings of sadness that I am called upon to perform

one of the last sad rites to our departed brother; but if the dread
summons could in the providence of God be delayed no longer, I.
feel honored in being chosen by the bar to present these resolu
tions on the death of Hon. John Q. R. King, to the Suprem Court
of his adopted State. I also feel it a privilege to do so because I
had been on terms of friendship with Governor King since I first
came to the bar.
In the trial of the first law suit in which I ever participated,

Gov. King was one of the leading counsel. It was the trial
of J. J. Tatman for murder, in April, 1866, at Paducah, Ky. Gov.
King was at that time in the meridian of success as a prom
inent lawyer and citizen. He had a large and lucrative practice;
his professional services in important jury cases were sought

throughout Southwestern Kentucky; he was popular and prom
inent in politics, and quite successful financially.
I first be
came acquainted with Gov. King in the spring of 1865, when I

went to Paducah, Ky., with my regiment and took command of
the post. Soon after, Gov. King called on me, and I had a pleas
ant and instructive talk with him regarding the people, and state
of things existing at that time, growing out of the war, in that

community. During the summer of 1865, it became my duty to
restore the supremacy of the civil law over martial law, which had
existed during the war. During this time Gov. King was promi
nent in counseling on the side of wise moderation, peace, law, and
order. He was one of the few prominent men in that community,

who had the confidence and good-will of the Union men and Con
federates alike, as they were called. In the law suits arising out
of the war, he appeared as the advocate of both these classes, be
Drzosmssa TERM, 1879.
xvii
Proceedings upon the death of Hon. John Q. A. King.
tween whom often much bitterness and malice existed; and be it
said to his praise, he always conducted such suits so as to allay and

not to excite those passions. From the time I commenced the
practice of law in Paducah, in the winter of 1865-6, and until I
went to Montana as Associate Justice in 1869, I knew Gov. King
intimately at the bar. During this time he stood in the front
rank of jury advocates, and his reputation was co-extensive with
the State.
I have thus stated what I know of Gov. Kings standing and

reputation as a prominent lawyer and citizen in Kentucky, be
cause I have felt that since his residence in this State he has not
borne so high a reputation for ability, and has not succeeded so
well as he did in Kentucky.
I attribute this to the great differ
ence that exists between the qualities and acquirements which in

days past, and particularly in the southern circuit, gave a. man
prominence and distinction as an advocate and politician and

those required to win the coveted prize in this part of the country
in this generation. Formerly, in Kentucky, the rst day of most
every term of court was devoted to political speaking. A large
portion of the inhabitants came to hear the speeches, and the law
ye_rs who made the most brilliant display in this arena were often
retained as the advocates in the important. trials to take place at
the term. With us it is ditferent. Here, I think, a brilliant hust
ings speech, instead of attracting clients, would cause distrust of a
lawyers abilityat least, of his solid legal acquirements. Those

good old days when the advocates at nisi prim gave the politics
to the people, as well as the law to the courts and juries, are fast
passing away even where they once ruled supreme. The news
paper has usurped one branch of the advocates occupation.
And
the advocate who has been reared and practiced in that school till
past fty years of age, attempts s. bold and difficult undertak
ing when he goes to such new, different, and, to him, untried
elds, and enters the lists with those to the manner schooled and
reared. And it would be surprising if for some time he did occupy
so prominent a position or succeed as well as his real ability and
merits deserved. I do not say this in disparagement of the real legal
acquirements and abilities of that class oflawyers who were ne po
litical speakers as well as leaders of their circuits.
I think I have
xviii
SUPREME Cousrr or COLORADO.

Proceedings upon the death of Hon. John Q. A. King.
heard as profound, learned, and logical legal arguments, made by

those brilliant nisiprius advocates when the occasion demanded as
from the most exclusive student of special pleading and case law.
\Vhen Governor King rst came to Denver, in 1875, to decide

whether he would move here, I drove him around the city. He
seemed favorably impressed with the sturdy, vigorous growth of
our young city and State. You know as much as I do of his ca
reer since. I shall not attempt an analysis of his character and
abilities. Governor King was an excellent citizen, a kind and
good-hearted neighbor. He was a most devoted, indulgent, gon
crous, and loving husband and father. The resolutions correctly
express the loss sustained by his untimely death.

Chief Justice Eum1z'r responded as follows:
The resolutions will be ordered spread upon the records of the
court, and in making the order it is gratifying to know that what
has been so well and gracefully said of the deceased by his breth
ren of the bar has also been justly said. The eulogists of Gov. King
have no occasion to appeal to the rule that tributes to the dead

may not be challenged. That his work was well and nobly done,
that in all the relations of life he was strong, and brave, and true,
there is not only abundant but universal testimony.
My a.cqua'mt
ance with the deceased, though limited, was of an unusually pleas

ant character. To know him was to feel that he was just, upright,
and honorable; from the beginning he inspired condence and

commanded respect.
There was that in his manner and cordial
greetings that warmed the heartto him.
The strongest impression
that he made on me was that he was open, frank, and sincere, and
who, in all the affairs of life, traveled broad highways and in the
light of the sun. His life was an illustration that the teachings of
our profession inspire, as its duties are in harmony with the high
est honor and purest manhood. As citizen and attorney, as social
gentleman and true friend, right action was the rule of his life, as
noble actions were its daily impulse and ornament. There is no
measure of value for such a life, and consequently we may not esti
mate our loss; but while we mourn, we feel thankful that he lived
and was our professional brother.
'W'e take pleasure in making your tribute to his high character a

matter of record.
PROCEEDINGS
IN THE
SUPREME COURT OF COLORADO,

UPON THE DEATH OF
HON. EUGENE P. JACOBSON.
Upon the 16th day of April, A. D. 1881, the same being one of
the days of the April term, A. D. 1881. Tuonas M. Pxrrsasou,
Esq., having been appointed for that purpose, presented to the
court the following preamble and resolutions which had been
adopted at a meeting of the bar :

Wnnnass, By a. sudden and inscrutable decree of Divine
Providence our associate, friend and brother, EUGENE P. JACOBSON,
has been taken from among us to join the innumerable throng in

that world from which no tidings ever return, we, his associates,
while mourning his loss, desire to perpetuate the remembrance of
his many virtues and give voice to our regrets, and do hereby
Resolve, That the loss of our deceased brother from the pro
fession, and from the family and social circle of which he was ii.
loved and respected member, is one, the poignance of which time
alone can soften, but can never repair; for while lapse of years and
lifes busy cares may dull the pain and make the bitterness of the
present a hallowed memory in the future, yet that the world is so
much the poorer by the loss of his ability, integrity and kindness,
stands and must ever stand, a. sadly admitted fact for which coin
ing years offer neither hope of retum or present or future com
pensation.
Resolved, That in perpetuation of his memory and as a tribute

to his worth, we, his associates and co-workers, gladly bear testi
(xix)
xx
SUPREME Coonr or COLORADO

Proceedings upon the death of Hon. Eugene P. Jacobson.
mony that in every walk in life, whether on the eld of strife in

his military career, in the peaceful, yet perplexing and oft-times
trying duties of a public life, in the rugged paths of a. noble, yet
laborious and searching professional one, or in the quiet by-paths
of social and family life, he was ever found walking as became the
office he lled, the pursuit he followed, the circle he adorned and

by whom he was loved and respected, so that his country acknowl
edged its indebtedness to him by tokens more enduring than

brass, and by entrusting him with stations of duty and honor, his
profession by according to him a place among its foremost men,
nd his family-and social circle by returning to him, measure for
measure, its gratitude, esteem and love. So, while young in years,
e saw lifes setting sun, he may well have reected that if life
as been given us to enlarge and cultivate our faculties, to dis
ipline and ennoble our morals, to gain the esteem and approba
ion of our fellows and thus deserve the smiles and approval of
i'0d, bis lifes work had been well and faithfully done; for we
now and cheerfully bear witness that he was able in intellect,
onest in purpose and action, pure in heart and ever conscientious,
-Jurteous and kind, which qualities, coupled with a noble ambition
1 be foremost in every good work, had drawn to him friends in
very walk in life, and has left to us an example to be emulated,
character to be revered, and a. memory that will long remain en

deared to us by those virtues.
Resolved, That his private life and conduct on the eld of battle,
have shown not alone his courage, but his loyalty to the country
of his adoption, and that he was worthy to enjoy the rights and
privileges bestowed by our institutions, and has conrmed the wis
dom of the fathers in inviting all lovers of liberty to a. welcome
home upon our shores.
Resolved, That while our own experience teaches us how vain

are mere words to assuage the grief that near and dear friends
must feel at such a loss, yet as a. further tribute of affection to our
brother, and as an expression of our respect and esteem for his

much-loved and respected widow and his revered mother, we ex
.,-<.
tend to them our sympathy and regard in the great loss, to the
one of a. husband, kind and true, and to the other of a son who has
made her respected wherever he was known.
APRIL TERM, 1881.
xxi
Resolved, That a. copy of these resolutions be furnished to the

widow of the deceased, and also one furnished to his mother in
Europe, and that the same be published in the daily papers of this
city."
The following responses were made by Chief Justice ELBERT,

and Justice Blcx.
Ensmrr, C. J. We fully sympathize with the members of the
bar in all they have said of the deceased.
It is gratifying on such an occasion as this, to know and to say

that this court has no recollections of Colonel Jacobson but such
as are of the most pleasant and kindly character. However in

sistent he may have been in the cause of his clients, he under
stood and habitually recognized in this court that duty of recip
rocal courtesy and kindness which should control the intercourse
of bench and bar.
'
Without qualication or limitation we are able to add our tes

timony to the witness you bear to his high character as a mem
ber of our profession, and a citizen of our commonwealth.
It is diicult to realize so bright a pathway as suddenly ending
in an open grave. The why and the wherefore we do not know,
and we may not question the mystery of our misfortune. Had
his life been spared, greater success doubtless awaited his talents
of no ordinary mark, and of no ordinary training; still he
lived long enough to gather the richest harvest that life a'ords
the love, respect and condence of his fellow men.
No life, perhaps, is fuller of unencouraged etfort and post
poned reward than that of the earnest, conscientious, laborious
attorney.
We all know that such an one nds his highest reward
in the approbation and esteem of his brethren of the bar. No

recognition, perhaps, would have been dearer to the deceased than
that which to-day you ask to have spread on the records of this
court.
I will not seek to add to the tributes to his character which

have been so well and justly spoken by those who best knew, and
most esteemed and admired him. I feel that the best service I
can render the profession upon this occasion, as well as the kind
est tribute I can pay to his memory, is to direct your attention to
his life and character, and this indorsement of them by his breth
xxii
SUPREME Counr or COLORADO.

ren of the bar, and bid you draw from them incentive encourage
ment and strength for lives of right action and high endeavor.
The resolutions will be spread upon the records. Mr. Justice

Beck was intimate with the deceased, and will respond further to
the resolutions.
BECK, J. While most heartily concurring in the well deserved
tribute just paid to the memory of our deceased brother by the
Chief Justice, as well as in the eloquent testimonials of the bar, I
would do violence to my own feelings, if I suffered the occasion

to pass without giving some expression to my individual estimate
of his character.
My relations with the deceased during the latter years of his life
were of a very intimate and friendly character. I knew him well
and can bear witness that he was a man of noble impulses, of kindly
and generous disposition, and possessed of most genial social
qualities.
-
His home as well as his heart was ever open to receive his
friends, and his treatment of them was alwtys princely.
He was a. man of much intellectual power, and was possessed of
an indomitable energy and will. Cut down in the prime of man
hood, he had not reached the acme of fame to which he must have
risen had his life been prolonged, yet single handed, and upon his
merits, he had achieved a distinction as a lawyer, a soldier and a
statesman, of which any man might be proud.
In his death the bar has lost one of its brightest ornaments,
society one of its most useful citizens, while the loss sustained by
the home circle is beyond my power to express.
The sad event
has cast a gloom over the entire community, wide spread and deep,
but there is one true and contiding spirit more nearly crushed by
the cruel blow than any other, and it is meet that she be assured of
our heartfelt sympathies. Her husband was her life, and the wor.<l
now seems dark and lone to her that he is gone. Doubtless, in her
bitter anguish, she has felt the force of the sentiment:
When the storm dies, the leaf that grew
Out of its heart must perish too."
But it should a'ord her some comfort to know that the many
hearts that grieve at the loss of her husband deeply sympathize
in
APRIL TERM, 1881.
xxiii
with her in this great sorrow which has come to her life. The re
ection must also be consoling that he whom she chose in the
morning of life to be her protector and partner in lil'es journey,
acted well his part under all circumstances, and left a name un
tarnished by any evil deeda name at the mention of which she

need never blush.
Straightforward, courteous and benevolent, he was a man who
would scorn to be guilty of a mean or dishonest action. All our

encomiums are, therefore, but just tributes to his memory.
It has been well said that the true noblemen of earth are they
who are known by excellent virtues and noble deeds; they who
have honest and pure hearts, above all meanness and crime ; who
act honestly in all circumstances, and whose chief desire is to

benet their fellow men."
Verily our lamented brother was one of earths true noblemen
RULES OF TELE
WRITS OF
RULE I.
ERROR-SUPERSEDEAS-PROCESS
ERROR.
ON
WRITS OF
Writs of error shall be directed to the clerk or
keeper of the records of the court in which the judgment or de
cree complained of is entered, commanding him to certify a cor

rect transcript of the record to this court. In any case where a
transcript of the record, duly certified to be full and complete, has
been filed, or may be hereafter filed, in the office of the clerk of

this court, before the issuance of a writ of error, it shall not be
necessary, except in a case where a supersedeas may be allowed,

to deliver such writ to the clerk of the inferior court; but the same
may be filed in the office of the clerk of this court, and such tran
script, so filed with the clerk of this court, shall be taken and
considered to be a due return of said writ of error.
When a writ
of error shall issue in a case where a supersedeas has been allowed

after the filing of the transcript of the record, and shall be served
on the clerk of the inferior court, he shall return upon said writ
that the same has been served upon him, and that it appears by the
indorsement thereon that a transcript of the record has been filed
in the office of the clerk of the Supreme Court.
RULE II. A scire facias, or summons to hear errors, may be
made returnable on any day of the term, but all such writs which
shall be issued more than ten days before the term, shall be made
returnable on the first day of the term; and if any such writ shall
not be served ten days before the return day thereof, the defendant
so served shall not be required to appearin obedience thereto until
(xxv)
/
xxvi
SUPREME CoURT OF COLORADo.

Rules of Practice.
the first day of the term of court next succeeding such return day
A defendant upon whom process has not been served may enter
his appearance, and upon five days' notice to the plaintiff, may
proceed in the same manner as if duly served with process.
RULE III. If a scire facias or summons to hear errors shall not
be served, an alias or pluries may be issued without an order of
court therefor.
RULE IV. No supersedeas will be granted unless the tran

script of the record on which the application is made be complete,
and certified by the clerk of the court below with an assignment
of errors written thereon or appended thereto.
RULE V. When a writ of error shall be made a supersedeas,
the clerk shall indorse upon said writ the following words: A
transcript of the record in this cause having been filed in my
office with an order indorsed thereon that the writ of error herein
be made a supersedeas according to law, this writ of error is

therefore made a supersedeas and shall operate accordingly,
which indorsement shall be signed by the clerk of this court.

RULE VI. Whenever execution or other final process shall be
issued upon a judgment at law or decree in equity, and the record
of such judgment or decree shall be removed into this court by
writ of error operating as a supersedeas, such writ of error may

be served upon the officer in whose hands such execution may be,
and thereupon all proceedings under such execution shall be dis
continued, and such officer shall return the same into the court
from which it was issued, together with the copy of the writ of
error served on him, and shall set forth in his return to such exe
cution what, if anything, he hath done in obedience to the com

mand thereof.
Such service of the writ of error and supersedeas may be made

by delivering to the officer having such final process for execu
tion a copy of such writ of error and the indorsements thereon,

with the certificate of the clerk of the Supreme Court, or of the
clerk of the inferior court to whom the same is directed, that the
same is a true and perfect copy of the original of such writ of
error and the indorsements thereon.
RULE VII. Whenever a bond is executed
by an attorney-in
fact, the original power of attorney shall be filed with the bond in
DECEMBER TERM, 1881.
xxvii
Rules of Practice.
the office of the clerk of this court, unless it shall appear that the
power of attorney contains other powers than the mere power to
execute the bond in question, in which case the original power of
attorney shall be presented to the clerk, and a true copy thereof
filed, certified by the clerk to be a true copy of the original.

TRANSCRIPT OF THE RECORD.
RULE VIII. Clerks of inferior courts, in making up an authen

ticated copy of the record, shall certify to this court a copy of
the process, with the return thereto, the pleadings of the parties,
the verdict in jury trials, the judgment of the court below and
all orders of the court, the bill of exceptions, the appeal bond in
cases appealed.
This rule shall not extend to appeals or writs of error in chan

cery or criminal cases.
RULE IX. The clerks of the court below shall arrange the sev
eral parts of the record in chronological order.
RULE X.
The clerk of this court shall not tax as costs in this
court any matter inserted in the transcript contrary to the fore

going rules.
RULE XI. The appellant or plaintiff in error, or his attorney,
may, by praecipe, indicate to the clerk what of the files of the cause
shall be inserted in the record, and in such case, if the record shall
be insufficient, it shall be perfected at his cost; and if unneces
sarily voluminous the cost of the unnecessary parts shall be taxed
against him.
ASSIGNMENT OF ERRORS.
RULE XII. Appellants and plaintiffs in error shall assign errors

at the time of filing the transcript of record, and each error shall
be separately alleged and particularly specified.
When the error alleged is to the charge of the court, the part
of the charge referred to shall be quoted totidem verbis in the
specifications.
The same shall be signed by an attorney or counselor of the
-
Court.
RULE XIII.
If the appellant or plaintiff in error shall fail to
xxviii
SUPREME COURT OF COLORADo.

Rules of Practice.
assign errors, the appeal or writ of error may be dismissed, and if

the appellee or defendant in error shall not appear and join in
error, the cause may be heard ex parte, or the judgment or decree
may be, in the discretion of the court, reversed without a hearing.
RULE XIV.
Counsel will be confined to a discussion of the
errors stated, but the court may, in its discretion, notice any other
errors appearing in the record.
ABSTRACT OF THE RECORD.
RULE XV. Appellants and plaintiffs in error in all causes in

the Supreme Court shall prepare a printed abstract of the record
in each case, in which they shall set forth the title of the cause,
with the date of the filing of all papers in the court below, and a
brief statement of the contents of each pleading, and shall set forth
fully the points of the pleadings or evidence, and the points relied
upon for the reversal of the judgment or decree; the clerk of the
court below shall also number each folio of one hundred words in
the transcript of the record, and appellants and plaintiffs in error

shall refer to the same in the margin of the abstract in such man
ner that orders, pleading an evidence referred to in the abstracts
may be easily found in the record; they shall file with the clerk
of this court, for the use of the appellee or defendants in error and
judges of this court, six copies of such abstract, at least three
days before the cause is heard.
RULE XVI. The defendant's counsel shall be permitted, if he
is not satisfied with the abstract or abridgment of the record by
the plaintiff's counsel, to furnish each of the justices of this court
with such further abstracts as he shall deem necessary to a full
understanding of the merits of the cause.
RULE XVII. In case the appellant or plaintiff in error shall neg

lect to file an abstract in compliance with the rules of this court,
the opposite party may file the abstract and prepare the cause for
a hearing ex parte, and have the costs taxed therefor, provided
the appellant or plaintiff in error would have been entitled to have
the cause heard at the same term, or the court may dismiss the
appeal or writ of error.
RULE XVIII. If the abstracts filed shall not present the parts
of the record to which reference is made in the assignment of er
the appeal or writ of error may be dismissed.
xxix
Rules of Practice.
BRIEFS AND ARGUMENTS OF COUNSEL.
RULE XIX. The brief of the counsel for appellant or plaintiff

in error shall contain astatement of the errors relied upon and the
authorities to be used in the argument, and six copies thereof
shall be led with the clerk of this court at least three days be
fore the cause is heard ; one of the copies may be withdrawn by
the counsel for appellee or defendant in error, and the others shall
be for t-he use of the justices of the court.

RULE XX. Counsel for appellee or defendant in error shall also
le with the clerk six copies of his brief for the use of the justices
and the opposing parties on or before the day next preceding the
day on which the cause is to be heard.
Rum"-: XXI. In citing cases from published reports the names

of the parties as they appear in the title of the cases, as well as
the book and page, shall be given.
RULE XXII. Counsel who have not complied with the rules
relating to briefs will not be heard.
RULE XXIII.
If the counsel for both parties shall submit ar
guments in writing it shall not be necessary to le briefs, but if

counsel for either party shall desire to address the court orally,
the opposing counsel shall le his brief as required by the rule.
MOTIONS.
RULE XXIV.
All motions, except motions for further time to
assign errors, or to le briefs, abstracts, and the like, shall be in
writing, and at least twenty-four hours notice of the time at

which the same will be heard, shall be given to the opposite party.
RULE XXV. The party holding the alrmative shall begin and
conclude the argument upon the hearing of any matter before
the court.
DISMISSAL OF APPEALS.
RULE XXVI.
If a transcript of the record shall not be led as
required by law in case of appeal, the appellee may present a

transcript of the judgment, the order allowing the appeal, the bond
and the approval thereof, and thereupon the appeal shall be dis
missed with costs.
XXX

Rules of Practice.
WITHDRAWAL OF PAPERS.
RULE XXVII. No papers shall be taken from the files except

by leave of court, but appellants and plaintiffs in error may with
draw the transcript of the record for the purpose of making ab
stracts, upon giving receipts therefor to the clerk; and upon such
withdrawal may retain the same for eight days, and no more.
If the appellee or defendant in error shall desire to make an
abstract of the record he may withdraw the transcript upon

giving the like receipts and retain the same for the like time.
Neither party shall withdraw the transcript of the record more
than once.
AGREED CASE.
RULE XXVIII. No judgment will be pronounced on any

agreed case, unless an affidavit of some credible person shall be
filed setting forth that the matters presented by the record were
litigated in good faith about a matter in actual controversy be
tween the parties; and that the opinion of this court is not
sought with any other design than to adjudicate and settle the
law relative to the matter in controversy between the parties to
the record.
REHEARING OF CAUSES.
RULE XXIX. Application for rehearing of any cause shall be

by petition to the court, signed by counsel, briefly stating the
points wherein it is alleged that the court has erred; such petition
to be filed within fifteen days next after the filing of the opinion
in the cause, if the same shall have been filed in term time, or if
such opinion has been filed in vacation, then within the first five
days of the next succeeding term. Counsel may accompany such
petition with a brief of the authorities relied upon in support
thereof.
RULE XXX. If in any cause in which the opinion of this

court is filed in vacation or within fifteen days of the adjourn
ment of the court, a petition for rehearing is presented to either

of the justices of this court, and he shall certify that there is
xxxi
Rules of Practice.
probable cause for granting the prayer of the petition, all further
proceedings authorized by the judgment of this court shall be

stayed until the next term of the court.
COSTS.
RULE XXXI. Upon printed abstracts being fumished as re

quired in the foregoing rules, it shall be the duty of the clerk to
tax a printers fee at the rate of 45 cents for each one hundred
words of one copy of such abstract, against the unsuccessful

party not furnishing such abstracts, as costs, to be recovered by
the successful party fumishing the same.
RULE XXXII. Clerks of district and probate courts shall be
entitled to receive the fees allowed bylaw for all copies of records
before delivering the same. If in a criminal cause the defendant
shall be unable to pay for a transcript of the record, the justice
assigned to the judicial district in which such record may be shall
have power to order and direct that such transcript be made and
furnished to the defendant without charge.
RULE XXXIII. No person shalt be admitted to practice as an
attorney or counselor at law upon evidence that he hath been ad
mitted to the bar of another State or Territory, if at the time of
his admission to the bar of such State or Territory, he was a citi
zen of this Territory.
RULE XXXIV.
No person shall be admitted to practice law in
this State, who shall not rst have taken and subscribed an oath
that it is bona cle his intention to become a citizen of the State
of Colorado and to make the practice of the law his permanent
and usual occupation, and that he will commence the practice of
law therein within three months from the date thereof; and the
fee of the clerk of the Supreme Court for ling such oath, and en
tering the name of such party upon the record and issuing a
license, shall be ten dollars.
LIBRARY.
RULE XXXV. No book shall be withdrawn from the library
of this court, for any purp_0se except by the order of the court in
open session.
xxxii
SUPREME Comrr 01- COLORADO.

Rules of Practice.
RULE XXXVI.
Abstracts of the record shall hereafter contain
the assignment of errors, and shall be printed upon an octavo

page in pamphlet form. All briefs of counsel shall be printed in
the same form, and six copies of each of such briefs and abstracts
shall be led with the clerk.
RULE XXXVII.
When a party to any cause pending in this
court asks leave, without suggesting a diminution of record, to

le an additional or supplemental transcript of the record, he shall
give at least twenty-four hours notice thereof to the opposite par

ty. At the time of giving such notice the additional or supple
mental transcript shall be deposited with the clerk of this court
for the inspection of the opposite party. If, upon hearing the
motion, leave is granted, the additional or supplemental tran
script may be led and considered in connection with the original
transcript.
RULE XXXVIII.
Special terms of this court may be held at
any time upon order signed by either two of the justices of the
court, and led in the oice of the clerk at least fteen days prior
to the day appointed for the assembling of the court. The clerk,
on receipt of such order, shall forthwith enter the same at length
in the records of the court, and give notice of the appointment of
such special term, and the day appointed therefor, in one or more
newspapers published at the seat of government.
Rum: XXXIX. N0 appeal shall be deemed returnable to any
special term.
CONTESTED ELECTIONS.
RULE XL.
Any qualied elector wishing to contest the election
of any person to the otce of Supreme, District or County Judge,

shall, within thirty days after the canvass by the State board of
canvassers in case of the District or Supreme Judge, and within
twenty days after the canvass by the county board of canvassers
in the other case, le a written statement of his intention to con
test, in the oice of the Secretary of State, in the case of the Dis
trict or Supreme Judge, and where the contest is for the oice of
(ounty Judge, in the oice of the County Clerk of the county in
which the person whose election to the oice of County Judge is

to be contested resides; which statement or motion shall set forth:
xx xiii
Rules of Practice.
First. The name of the contestor.

Second. The name of the contestee.
Third.
The oice.
Fourth. The time of the election.

Fib. The particular cause of contest.
The statement shall be veried by the aidavit of the contest
ing party, that the causes set forth are true, as he verily believes.
RULE XLI. It shall be the duty of the Secretary of State and
the County Clerk to safely keep and preserve all such statements
in their respective offices.
RULE XLII.
Withiri thirty days after the ling of such state
ment of contest, the contcstor, if the contest is to be further pros

ecuted, or some one in his behalf, or in behalf of the person for
whose benet the contest is made, shall le in the oice of the
clerk of this court a petition setting forth the ling of the state
ment of contest, and the particular grounds therefor, which peti
tion shall be veried by the oath of some credible person. Upon
the ling of such petition the clerk of this court shall issue asum
mons directed to the sheri' of the county where defendant
sides, under the seal thereof, which summons shall bear teste in
name of the chief justice, and be returnable in not less than
nor more than thirty days, which summons may be served by
re
the
ten
the
sheriff of the county, or in case he is interested, then by the coroner

of the county, which summons shall be served in the same manner
that like writs are served from the district court, and shall command
defendant to be and appear before this court by a day to be

named therein, and answer the complaint of the plaintitf in that
behalf, which summons may be issued to any county in this State
where defendant may be found.
Alias and plurics writs may is
sue in case service is not had under the original.

RULE XLIII. Upon the return day of the writ if itshall appear
that due service has been had, default may be entered, and in that
case the court may grant the relief asked for, either with or with.
ont proof, as in its judgment is proper. If defendant appear he
shall answer the petition, which answer shall be under oath. The
suiciency of either petition or answer may be questioned by demur
rer, and if found defective, may be amended on suoh terms as the
court may deem proper.
Every material allegation of the peti\
xxxiv
SUPREME CoUa'r or COLORADO.

Rules of Practice.
tion not controverted by the answer, will be taken as true; the

statement of any new matter in the answer, in avoidance or con
stituting a defense will, at the hearing, be deemed controverted by

the contestant. The petition and answer shall constitute the
pleadings in the case and form the issues.
RULE XLIV. When the case is at issue the court shall hear
and determine the same in a summary way without the interven
tion of a jury.
The court shall have the power to send for per
sons and papers, but unless otherwise ordered no witness shall be

oxtmined in open court. Either party, after the issue or issues
are formed, may have the deposition taken of any witness in this
State before any judge (other than the eontestee), or clerk, or
any justice of the peace or notary public in this State, upon giv
ing the adverse party not less than ten days notice of the time
and place of examination. At such examination either party may
propound such interrogatories, direct, cross and re-direct, as may
be proper. The depositions when completed shall be carefully
read to the witness and corrected by him in any particular desired;
it must then be subscribed and sworn to by the witness, certi
ed by the judge or officer taking the deposition, enclosed in an
envelope or wrapper, sealed and directed to the clerk of this court;
and thereupon such deposition may be used by either party at the
hearing, subject to all legal exceptions.
But no objection to the
form of any interrogatory shall be made at the hearing, unless the

same was stated at the time of the examination, and noted in the
deposition by the officer before whom it was taken.

RULE XLV. All rules of evidence applicable to trial in courts
of justice wherein trial by jury is recognized, shall be observed
so far as applicable.
RULE XLVI. The nding and judgment of the court shall be
entered at length upon the record. The court shall have power
to issue any and all orders to carry into eect its ndings and
judgments.
RULE XLVII. The court shall in each case award costs to the
successful party, and executions shall issue therefor, the same as in
other cases. Witnesses and officers shall receive like compensa

tion as prescribed by law for like duties and services in cases in
the district Court.
xxxv
Rulcs of Practice.
RULE XLVIII. In any application made to the court for a writ

of habeas corpus, mandamus, quo warranto, certiorari, injunction,
or for any prerogative writ to be issued in the exercise of its orig
inal jurisdiction, and for which an application might have been
lawfully made to some other court in the rst instance, the peri
tion shall, in addition to the necessary matter requisite by the
rules of law to support the application, also set forth the circum
stances which, in the opinion of the applicant, render it necessary
or proper that the writ should issue originally from this court,
and not from such other c0urtthe suiciency or insufficiency of
such circumstances so set forth in that behalf will be determined
by the court in awarding or refusing the application. ln case
any court, justice, or other oiccr, or any board or other tribu
nal, in the discharge of duties of a public character, be named in
the application as respondent, the petition shall also disclose the
name or names of the real party or parties, if any, in interest, or
whose interest would be directly alfected by the proceedings, and
in such case it shall be the duty of the applicant obtaining an or
dnr for any such writ, to serve or cause to be served upon such
party or parties in interest a true copy of the petition and of the
writ issued thereon, in like manner as the same is required to be

served upon the respondent named in the application and pro
ceedings, and to produce and le in the otlice of the clerk of this
court the like evidence of such service.
RULE XLIX. VVhenever an appeal or writ of error shall be dis
missed upon motion of the appellee or defendant in error upon any

grounds other than for the want of jurisdiction, this court may, in
its discretion, airm the judgment of the court below.
t
CASES
IN THE
SUPREME OOURT OF OOLORADO.

APRIL TERM, 1879.
i~
BROWN v. IVILLOUGHBY.
1. In taking an appeal from an order denying a motion for a new trial,
under section 338 of the code, notice of the appeal must be given within sixty
days after the making of the order.
2. An intermediate order within the meaning of section 346 of the
co e, is an order from which no appeal can be taken, and which, but for the
provision of the code, could not be reviewed.
3. Where no appeal is taken from an order denying a motion for a new
trial. the court will not examine the evidence with a view to determine
whether it is sufficient to support the judgment. But any error of law in ad
mitting or excluding evidence, may be reviewed on appeal from the judg
m--nt, if made part of the record by bill Of exceptions or statement on appeal.
4.
In an action for malicious prosecution, actual knowledge that a crime
was committed is not necessary, nor is it essential that the prosecutor should
Irnorr the facts and circumstances upon which he predicates his belief. He
may act upon credible information or deceptive appearances of guilt, if he
acts in good faith.
5. If in such case the defendant can show that he had probable cause for
his conduct in instituting the proeecution. he is not liable.
Probable cause is
such a state of facts in the mind of the prosecutor as would lead a man of
ordinary prudence and caution to believe, or entertain an honest and strong
suspcion, that the person arrested is guilty.
6.
In such action, if want of probable cause be shown, the proof of actual
malice is also requisite to sustain the action. Actual malice may be proved
by the acts and clcclarutions of the party, or it may be inferred by the jury
from the want of probable cause.
(1)
SUPREME Court OF COLORADO.

Brown v. Willoughby.
7. Whatever tends to show evil intent on the part of the prosecutor in

instigating the indictment is properly admissible in evidence. The intent of
the prosecutor is the controlling inquiry when there is want of probable cause.
8. The official stenographer of the court was permitted to read from his
notes the testimony of a witness taken at the trial of the indictment, and who
was beyond the jurisdiction of the court at the trial of this cause, for the pur
pose of showing want of probable cause; held, that the stenographer's tes
timony was competent.
Appeal from the District Court of Arapahoe County.

CASE for malicious prosecution.
In the fall of 1874, Willoughby, the appellee, was sheriff of
Arapahoe county. As such officer he levied, at the suit of
Brown, the appellant, a writ of attachment upon a stock of dry
goods and notions of the property of the firm of Mines and
Elliott. In April of the following year Brown's suit ripened
into a judgment, he sued out a special execution, and at the
request of Brown,Willoughby removed the goods to the auction

house of Clark & Co., and advertised the sale, as required by
statute. The sale continued about eight days. Prior to its
commencement Willoughby informed Clark, the auctioneer, that
he desired to select certain articles from the stock for himself
his wife, and two ladies named Jochmus and Watson, with the
understanding that he was to account for the goods selected at
the same rates the like articles should realize at the public
sale. Being informed by Clark that he was content, Willoughby
made his selections prior to and during several days of the
sale. The goods so selected were divided into three parcels;
one lot was delivered to Mrs. Jochmus and one to Mrs. Watson,
by Willoughby, and accounted for on the books of Clark and

Company, and the proceeds paid to Brown. The goods selected
for himself and wife, Willoughby placed in a trunk in Clark &
Co.'s store. After the sale closed, Willoughby learned that
Brown was dissatisfied with his conduct in the matter, and he
thereupon requested Clark & Co. to sell the goods selected for
himself and wife, at public sale, which was done, and the pro
ceeds accounted for and paid to Brown.
In September, 1875, the grand jury of Arapahoe county re
APRIL TERM, 1879.
turned into the District Court a bill of indictment against

Willonghby for the larceny, as bailee, of the goods sold and de
livered by him to Mrs. Jochmus and Mrs. Watson. The in
dictment contained four counts. The rst laid the ownership

of the property in Brown; the second in one McFarland, who
had claimed the Mines and Elliot stock as their assignee; the
third in Mines and Elliot, and the fourth in Brown. Wil
loughby appeared and gave bail, and at the following January
term, 1877, was put upon his trial and acquitted, upon the
peoples testimony, the nry not leaving the box.
Thereupon this cause was commenced, and resulted in a ver
dict and judgment in favor of \Villeughby, in $6,000. To
reverse that judgment Brown prosecuted this appeal.

The appellant assigned twenty-six errors, but as the cause
was reversed upon a supposed erroneous instruction, it is
deemed unnecessary to make a further statement, except to set
out the instructions given, which were as follows :
1st. In order to warrant the jury in nding the defendant,
Brown, guilty in this action,the plaintiff must prove by a pre
ponderancc of testimony
- 1. That the defendant, Brown, instituted and prosecuted, or
caused to be instituted and prosecuted, the criminal suit against
the plaintiff, Willoiigliby, for the crime of larceny, upon the
indictment read in evidence. That said criminal suit is at an

end, and that the said Willougliby was acquitted.
2. That said criminal suit was instituted and prosecuted by

said Brown, against said Willoiighby, maliciously and without
reasonable or probable cause.
3. That said \Villoughby has sustained damage by reason of
the institution and prosecution of said criminal suit.
2d. There is no dispute that said WillOl1glll)y was thus in
dicted and acquitted of the crime of larceny, so that all you
have to consider is
1. Did said Brown institute or cause said prosecution to be
instituted against said Willoughhy '3
2. If Brown did institute or cause said prosecution to he
instituted, did he do it maliciously 3
SUPREME CoUa'r or CoLoa.u>o

3.
If Brown did institute or cause said prosecution to be
instituted, did he do it without reasonable or probable cause ?
3d. Unless you believe from the evidence that Brown did
institute or cause to be instituted the said criminal prosecution
against Wrilloughby, then your verdict shall be for the de
fendant.
4th. If you nd from the evidence that Brown used threats,

epithets or expressions of hatred or ill-will toward Willoughby
during the two or three years prior to and up to a short time
before the commencement of said criminal prosecution, these
facts will be sufficient, unless explained, to support the charge
of malice against the defendant, Brown; and malice may be
also implied against him, if you nd from the evidence that

Brown instituted, or caused said prosecution to be instituted,
Without probable cause.
5th. The want of probable cause is a material averment
and must be proved by the evidence.
It is not to be inferred
from the facts of the acquittal of the said Willoiigliby, nor is

the want of probable cause to be inferred from any malice
that may have been shown by the evidence to have existed on
the part of Brown against Willoughby, however malicious
Brown may have been toward Willoughby; still, if he had rea
sonable or probable cause for believing Willoughby to be guilty,
he had the right to prosecute him.

Probable cause does not depend on the actual state of the
cause, but upon the honest and reasonable belief of the party
prosecuting.
6th. The court further instructs the jury that if you should
nd from the evidence that there was a feeling existing in the
mind of Brown against Willoilghby that amounts to malice,
still from that fact, if you so nd, you will not presume that
the defendant, Brown, acted without probable cause that 'Wil
loughby had been guilty of larceny as charged.
+
h 7th. If you should nd from the evidence that defendant
did institute or advise the prosecution of the plaintiff, for the
larceny of the goods described in the indictment, then to enti
APRIL TERM, 1879.
tle the plaintiff to a verdict, you must find also that he insti
tuted or advised the prosecution maliciously. .
8th. The fact that defendant employed an attorney to as
sist in the prosecution of plaintiff, if you find he did so, is no
evidence of malice sufficient to support this action.
9th. The court further instructs the jury that by the ex
pression without reasonable or probable cause, is meant the
want of the knowledge of the existence of such facts and cir
cumstances on the part of the defendant as would lead a pru
dent and careful person to honestly believe that the plaintiff
was guilty of the crime imputed to him in the said indict
ment; and if you believe from the evidence that the said
plaintiff was acquitted by the jury that tried him under the
said indictment; that the plaintiff upon that trial offered
no proof in his defense; that the plaintiff bore a good charac
ter prior to the making of that charge, and that his reputa
tion in this respect was known to the defendant; that the
plaintiff took the goods mentioned in the indictment, openly
avowing and declaring his intention so to do; that the plain
tiff told the defendant before the finding of said indictment
why and under what circumstances he had taken the said
goods; that the plaintiff accounted for the said goods to the
said defendant; that the plaintiff took the goods while he was
sheriff and holding them under a writ of execution; and that
the defendant knew all these facts, if they be facts, before the
finding of the indictmentthen the court instructs you that
there was a want of reasonable or probable cause, and your
verdict must be for the plaintiff, provided you further believe
from the evidence, that Brown maliciously prosecuted Wil
loughby, or caused him to be prosecuted upon said indictment.

10th. If you believe from the evidence, that before the
commencement of the prosecution against Willoughby, he,
Willoughby, held the goods mentioned in the indictment as
sheriff, under legal process in favor of defendant, Brown,
against Mines & Elliot, and that Brown was informed before
the commencement of the prosecution against Willoughby,
SUPREME COURT or COLORADO.

that \Villoughby was converting said goods to his own use in

a manner and under circumstances calculated to make a rea
sonable man believe that he, Willoughby, intended to steal the

same, and that he, Brown, exercised reasonable precaution to
discover the truth of such information, and that after doing so
he believed such information to be true, and acted on such
belief, and so prosecuted \Villoughby, then Brown had proba
ble cause to prosecute Willoughby, under the second and third
counts of the indictment read in evidence, even if there was
malice on the part of Brown, in such prosecution.
11th. The court further instructs the jury, that if the goods
levied upon by Willoughby, as sheriff, by virtue of the execu
tion in evidence, were the goods of Hobson and others, the
defendants in said execution, then in that case, Willoughby.
when he made said levy and took possession of said goods,
became the bailee ofsaid Hobson at al.,' and if he converted
any portion of said goods to his own use with intent to steal
the same, he would be guilty of larceny. And if you believe
from the evidence, that Brown believed said goods to be the
goods of said Hobson et al. when the levy was made, and he
was credibly informed that said Wllltlllgllby did convert a por
tion of said goods to his own use, without accounting for the
same, and without their being sold at public sale, and that said
Brown was so informed, and after prudent inquiry, believed

that such conversion_ was done in such a manner as to cause a
reasonable man to believe that he, Willoughby, intended to
steal the samethen such facts, if provcn, will amount to a

probable cause for commencing prosecution of said Willoughby
for larceny, under the third count of the indictment, and to
warrant you in nding the defendant not guilty, so far as the
prosecution under such count was concerned.
12th. The court further instructs the jury, that if they be
lieve from the evidence, that the goods mentioned in the said
indictment were levied upon by the plaintiff, Willoiigliby, un
der and by virtue of the writ of execution given in evidence
in this case; that the execution was issued upon the judg
APRIL Tizmt, 1879.
Brown v. Willougliby.
ment also given in evidence ; that the judgment was in favor

of the said_ defendant, Henry C. Brown ; that the said execu
tion was levied upon the said goods of Mines & Elliot; that
the said goods mentioned in the said indictment were a por

tion of the said Mines & Elliot goods, and that the said de
fendant, Henry C. Brown, knew these facts, then the court in
strncts you that there was no reasonable or probable cause for
the rst and fourth counts of the said indictment read in evi
dence ; and that if the jury further believe from the evidence,
that the said defendant maliciously prosecuted the said plain
tiff, upon the said indictment ; that the said plaintiff has been
damaged by reason of such prosecution, and that such prose
cution terminated in favor of the said plaintiff, then the ver

dict of the jury must be in favor of the said plaintiff.
13th. The court further instructs the jury, that if they
believe from the evidence, that the said defendant was, on or
about the fth day of June, A. D. 1875, informed that the
said plaintiff had stolen large quantities of goods mentioned;
yet, if the jury further believe, that before the nding of the
said indictment, on the 18th day of September, A. D. 1875,
the said defendant learned that the information which he had
theretofore received respecting the said stealing was false or

unreliable, then the said defendant cannot rely upon such
prior information, to show that he had reasonable or prob

able cause for prosecuting the said plaintiff.
14th. The court further instructs the jury, that they are
the sole and exclusive judges of the credibility of the witnesses;
and that if they believe from the evidence, that any of the
witnesses in this case have willfully sworn falsely upon a ma
terial point, then the jury are at liberty to disbelieve any part
or the whole of the testimony of such witness, unless his tes
timony is corroborated by other eredible evidence.
_
15th. The court further instructs the jury, that if they nd
the defendant guilty, they may nd and assess the damages ot
the said plaintiff, against the said defendant, in any sum that
the jury may think just and right, according to the evidence,
not exceeding the sum of twenty-ve thousand dollars.
SUPREME Couar or COLORADO.

Mr. S. E. BROWNE, and Messrs. Srmss and DECKER. for ap

pellant.
Messrs. Faaxoa & Romans, for appellee.

.,,day
Tnarcmm,
C. J.
Judgment
wasC entered on the twentieth
of October,
A. D.
1877.
April sixteenth, A. D. 1878, the Idefendant led his notice of
appeal from the nal udgment.
N0 appeal was taken from the order of the court denying

the motion for a new trial.
In the latter case notice of appeal must be given within

sixty days after the lower court made the order. Code, Sec.
338.
Sec. 3-16 of the Code provides, Upon an appeal from a midg
ment the court may review any intermediate order involving
the merits and necessarily affecting the judgment.
An intermediate order, within the meaning of this sec
tion, is an order from which no appeal can be taken under the
Code, and which, therefore, but for this provision, could not be
reviewed : It applies exclusively to non-appealable orders.

As defendant failed to prosecute an .appeal from the order
denying the motion for a new trial, we are not at liberty to
examine the evidence with the view to determine whether it
is sufficient to support the judgment. Clark v. Gridley. 49
California, 108; Rycrcg v.Rycrq/3,42 California, 444; Reed
v. Bernal, 40 California, 628 (overruling Treadwell v. Davis,
. 34 California, 601); Rush v. Casey, 39 California, 339; Hilm
v. Peck, 30 California, 286; Ingmham v. Gilderrrzaster, 2
California, 483; Deputy v. Staplqford, 19 California, 305.
Although we may not review the evidence, any error of law
in admitting or excluding testimony may be reviewed on ap
peal from the judgment when the ruling is made a part of the
record by a bill of exceptions, or by a statement on appeal.

Carpenter v. lVz'lliams0n, 25 California, 167.
The appellant assigns for error the giving of the following
instruction:
The Court further instructs the jury that by
APRIL TERM, 1879.
the expression without reasonable or probable cause, is meant

the want of the lmowledge of the emistezzce of suehfacts and
circumstances on t/re part of the defendant as would lead a
prudent and careful person to honestly believe that the plain

tiff was guilty of the crime imputed to him in the said indict
ment, etc.
This instruction assumes that Willoiiglrby had been chargei

by the indictment with the commission of one offense. Other
instructions assume that each of the ve counts charged a
separate and distinct crime, and the juryis elsewhere told sub
stantially that if Brown prosecuted or instigated the prosecu
tion of either one of the ve counts, maliciously and without
probable cause as to such count, he is guilty ot' malicious
prosecution.
Greenleaf on Evidence (Vol. 2, Sec. 449) says: If groundless

charges are maliciously and without probable cause, coupled
with others which are well founded, they are not on that ac
count the less injurious, and therefore constitute a valid cause
of action.
The court should have been more specic on this point. It

is not conceived that if the charges made are the same, all re
lating to the same transaction, the main difference being in
the allegation of ownership of the property, a difference to be
attributed to the caution of the plcader who prepared the in

dictment, that the rule laid down by Greenleaf would apply.
It is common practice among prosecuting attorneys, when
there is any doubt as to where the ownership should be laid, to

lay it in several persons, in order to prevent the failure of jus
tice at the trial.
The principal obiection urged to this instruction, however,
is that it asserts the doctrine that unless the facts and circum
stances upon which the belief of guilt is honestly entertained

actually exist, and that the prosecutor have knowledge of their
existence, there could have been no probable cause for the

prosecution.
The essential ground of this action. without
which it can never be maintained, is want qf _p/-ububle cause.
10
SUPREME Conar or COLORADO.

However malicious may be the motive of the prosecutor, if
there was probable cause for the prosecution, in the eye of the
law, he is guiltless. It therefore becomes important to con
sider what is meant by want of probable cause. If upon
this point the charge was erroneous, the verdict ought not to
stand.
We think the instruction is entirely too broad.
Actual knowledge that the crime was committed is not nec

essary, nor is it essential that the prosecutor shall know the
facts and circumstances upon which he predicates his belief.
Ile may act upon credible information or deceptive appearance
ot' guilt if he acts in good faith. If the defendant could show

that he had probable cause for his conduct- that is, that from
such information as would induce a reasonable and prudent
man to believe the plaintiff guilty of crime, he instituted the

prosecution, he is not liable, whatever may have been his own
personal malice for setting it on foot. Barron v. lllason,
31 Vermont 198.
'
Probable cause in such a state of facts in tlze mind of the

prosecutor as would lead a man of ordinary caution and pru
dence, to believe or entertain an honest and strong suspicion
that the person arrested is guilty. Bacon v. Towne et al. 4

Cush. 239.
It is not necessary that the crime of larceny should be xed
upon the plaintiff; if by his folly or his fraud he exposed him
self to a well grounded suspicion that he was guilty of that

offense, the prosecution had at least probable cause for its
basis, and this is sufficient to defeat the present action. Wil
wnart/t v. 1l[0m_tford, 4 Washington O. C. R. 84.

In Harpluzm et al. v. W/zitney, 77 Ill. 39, this question
was very fully considered. The jury in that case had been in
structed that a party charging another with the commission
of a crime, must act upon facts or circumstances within his

knowledge sufficient to induce the belief in the mind of a cau
tious man, of the guilt of the person charged with crime.
Commenting upon this instruction the court says, A citi
zen having reason to believe or entertain a strong suspicion
APRIL TERM, 1879.
11
Brown v. Willougliby'.
upon 2'nfornmtz'0n or popular report that a crime has been

committed, must be permitted to appear and direct the atten
tion of the grand jury towards its investigation, without ex
posure to the peril--in case of failure of conviction, or it turn
ing out that the information upon which he acted was not
founded in factof being held liable for malicious prosecution,
and of being mulcted in ruinous damages. The criminal law
does n0t- enforce itself; it requires the agency of some in
formant to put it in execution. There would be little of effi
ciency of execution of much of our criminal law, as for in
stance, the laws for the suppression of gambling, the unlawful
sale of intoxicating liquors, the keeping of houses of ill-fame,
and the like, if those only might move with impunity in the
matter of their enforcement, who had actual cognizance of the
infraction of the law.
In this case, Brown in his defense does not pretend to have
had actual cognizance of the facts and circumstances which led
to the criminal prosecution. He acted upon information

alone. Ifin any given case, where a party sued for malicious
prosecution, defends by offering evidence to show that he had
actual cognizance of the facts upon which he predicated the be
lief that a crime had been committed, the denition of want
of probable cause, contained in the instruction under con

sideration might be appropriately given, it is erroneous in a
case like the present, where the defendant attempts to justify
his action upon a different ground. That elsewhere in the in
structions the doctrine is recognized that probable cause
does not depend upon the actual state of the case, but upon
the state of the case as it lay in the mind of the prosecutor,
does not enable us to say that the jury was not misled by the
erroneous denition.
In this action, if the want of probable cause be shown, the\
proof of actual malice is also required to sustain it. Here the

law allows no presumption of malice, as it does in an action of
slander. Actual malice may be proved by the acts and declara
tions of the party; or it may be inferred by the jury from the
12
SUPREME Courvr or COLORADO.

want of probable cause.
\\'illl'ully false.
The charge must be shown to be
Levy v. Braunan, 39 California, 489; [fum
plz-/-ies v. Parker, 52 Me. 507.

\Vhere the evidence shows that accused was wholly innocent
of the charge, and that there was no probable cause for the ac
cusation, an action for malicious prosecution cannot be main
tained in the absence of malice, which may be traceable to a
spirTt of hatred, revenge or other sinister or improper motive,
denoting bad faith on part of the prosecutor. Stone v.
U/'0/:ker, 24 Pick. S7; 3 Phillips Ev. 572. Whatever tends

to show evil intent malus anim-us on part of the prosecutor in
instigating the indictment, is properly admissible in evidence.
The intent with which the prosecution was instigated, is the
controlling inquiry \vhere there is want of probable cause.
Henry C. Clark testiel at the trial of \Villoughby under

the indictment. At the time of the trial in the action for ina
licious prosecution, Clark was beyond the jurisdiction of the
cmrt. Mr. Dennison, the otlicial sbenographic reporter of the
court, who had taken do\vn the evidence at the trial in the
criminal case, was put upon the stand in the civil cause, and
allowed to testify as to the evidence given by Clark.
Ile read
from his otcial notes. It is objected that the court erred in

allowing this to be done. The objection was, that the plain
ti might have taken the deposition of Clark or produced

him. The objection is not well taken. For the purpose of
Slltn. tag want of probable cause, Dennison was as competent
to testify as Clark, and indeed if Clark had been in the court
room it is liiglily probable that his memory as to the evidence
given at the trial would not have been so accurate as the of
cial report of it. Goorlrich v. Wzrner, 21 Conn. 4-42; Bacon
v. Towne et al. 4 Cush. 238; 1 Hilliard on Torts, p. 460.

The aidavit in attachment, the writ, judgment, indemnity
bond, the special execution and the return thereof, in the suit
of Brown v. Mines cf: Elliott, were properly admitted in evi

dence, as tending to prove want of probable cause.
,
For error in the instruction upon the question of want of
APRIL TERM, 1879.
13
probable cause as applicable to this case, the judgment will be

reversed and cause remanded.
Reversed.
A petition for a re-hearing was led in this case, and a re
hearing granted, with directions to counsel to conne their dis
cussion to the instruction upon the_question of want of probable
cause, and afterward the following opinion was delivered by:

Ennnm, J. The rule that one erroneous instruction may be
taken as having been corrected by a subsequent instruction, is
not unattended with hazard, and should be applied with cau
tion.
.
ln this.case all of the testimony which went to the jury
touching the question of probable cause, shows that Brown
acted upon information, and not from personal knowledge.
There was no claim that he acted from personal knowledge.
In view of this fact, it is scarcely possible that the jury
could have understood the court byits instruction;to tell them
that they were to disregard all evidence showing that Brown
acted upon information and not upon personal knowledge.
Such an intention on the part of the court would have demanded
a much more explicit instruction.
For this reason I should feel clear in this case in applying
the rule and in holding the erroneous instruction corrected by
the subsequent one.
Our judgment of reversal, however, was
based in part on other errors which are stated by the Chief

Justice in his opinion. These remain unaided. For this
reason I concur that the judgment of the court below must be
reversed.
14

Phelan, etc., v. Ganebin.
PI-IELAN, imp1d with VILLARD & GREELEY V. Gann
BIN.
1. Under the Code ( 150) the clerks of the District Courts are authorized
to enter up judgments in vacation. The theory upon which judgments are so
entered is that the judgment is the sentence which the law itself pronounces
as a sequence of statutory condition.

2. In the absence of specic statutory directions, where the property and
business of a corporation is under control of a. receiver, the receiver is the
proper person upon whom service should be had to bring the corporation in
as a garnishee.
3. The fact of a receiver of a. railway corporation being non-resident is
immaterial, where the receiver is operating a portion of the railway within
the jurisdiction of the court issuing the gamishee process, and where the sum
due the judgment debtor is payable.
4. When the court appointing the receiver is in another State than the
court out of which the garnishee process issued, it is not incumbent on the
latter court to ask leave of the former before issuing such process.
5. A receiver is amenable to garnishee process in the absence of statutory
provision, and when the process does not tend to disturb his rights under the
general orders of the appointing court.
Appeal_f1'om District Court of Arapalzoe County.
Enmnm L. GANEBIN, the appellee, obtained judgment in the

district court of Arapahoe county, July 13th, 1878, against
Phelan, for the sum of $525.03. The plainti' procured
garu ishee process to be issued and served upon Villard and Gree
ley, receivers of the Kansas Pacic Railway Company, who were
required to appear upon a day named before a referee. The
nding of the referee was to the effect that Villard and Greeley,
as receivers, were indebted to Phelan, in the sum of $469.15,
and ordered that they as receivers, apply that amount toward

the satisfaction of the judgment in favor of the plaintiff.
Afterward Villard and Greeley appeared in the district court,
and moved the vacation of the referees report upon the

grounds stated in the opinion; the motion was denied, the re
port conrmed, and Villard and Greeley appealed to this court.
APRIL TERM, 1879.
15
Messrs. JAcoBsoN & DEVEREUx, for appellants.

Mr. Is AAC E. BARNUM, for appellee.
STONE, J.
Whether, under that section of the constitution
which declares that all judicial power shall be vested in cer

tain designated courts, it is competent for the legislative
assembly to authorize clerks of the district courts to enter
judgments in vacation in the cases provided in section 150 of
the Code, is a question we do not deem it necessary to discuss
at length. That the courts of many of the States have acted
under similar statutory provisions for many years past, and
that the validity of such judgments, has been upheld by
repeated decisions of the highest courts of the Code States
would be sufficient to set at rest the question with us. Suffice
it to say that the theory upon which judgments in such cases
are founded, is that the judgment is the sentence which the law
itself pronounces as the sequence of statutory conditions. The
clerk has no judicial functions; the statute directs the judg
ment. The clerk acts as the agent of the statute in entering
such judgment upon the records of the court. Freeman on

Judgments, Sec. 129. And the judgment, though in fact
entered by the clerk, is, in the consideration of the law, what
it purports on its face to be, namely: the act and determina

tion of the court itself.
Wells v. Morton, 10 Wis. 473.
The
objection raised to the affidavit of Haynes for the order of

garnishment is too merely technical to weigh against the
validity of the court's order and the subsequent proceedings
thereunder. The garnishees were described in the affidavit as
Receivers of the Kansas Pacific Railway (or railroad) Com
pany. The words (or railroad), used as they are in paren

thesis, may be rejected as surplusage, since their use renders
the description of the corporation neither more nor less cer
tain than if they liad been omitted.
Another objection made by appellant is, as to the sufficiency
of service upon the garnishees. The return of the officer is as

follows:
16
Surni-mu Couar or COLORADO.

STATE or Cononano,
Arapahoe County,
S8
'
I have duly executed the within by delivering a true copy

of both the'within writs to J. T. Odell, agent of Henry Villard
and_O. L. Greeley, receivers of the Kansas Pacic Railway (or
railroad) company, on the twentieth day of July, A. D. 1878.

D. J. Coox, Sheri,
By W. A. Smrru, Under Sheriff.

By statutory provision, service is made upon railway and
other corporations, by serving the president of such corpora
tion, if he may be found in the county; but if not, then ser
vice made upon other and subordinate oflicers, or upon agents
and stockholders. In the absence of specic statutory direc
tions, in case the property and business of such corporation is
under control of a receiver, we think upon principle, the same
rule as to the mode of service may apply. The receiver, as
the agent of the court which has appointed him, and under
its supervising control and authority, displaces the general
ofcers of the corporation. The agents, in carrying on the

business thereafter, become his agents; and such agents stand
in a like relation to the receiver as they formerly stood to the
managing oicers of the corporation. It may be that an en
tirely different class of proceedings would require a different
rule; as, for example, a suit brought to the court by whom
the receiver was appointed, and for a purpose affecting the
receiver himself as such, or the disposition of the property in
his hands as xed in its status by the courts order; but in the
case before us, we are inclined to regard the return of the oi
cer, that he made service upon an agent of the receivers as
showing a suicient service, unless the fact of the agency were
controverted by the garnishees themselves.
Another point made by appellants against the regularity of
the proceedings in the court below, is that the said receivers,
being non-residents of the State, cannot be held as garnishees.
While this rule may be true when applied to persons proceeded
against in their individual capacity, the case here presents a
APa1L Tenn, 1879.
17
Phelan, etc., v. Gauebin.
different aspect. The receivers were made parties as garnish

ees in their oicial or representative capacity, and where a
portion of the railway was operated by such receivers within
this State and \vithin the jurisdiction of the court below, where
the sum due the judgment debtor was owing and payable by
the receivers, the jurisdiction attached. Another point relied
upon by appellants, is that the court below had no authority

to proceed against the receivers as garnishees, Without leave
rst granted therefor by the court appointing such receivers.

This objection to the regularity of the proceedings would
be not without force, were such proceedings instituted within

the territorial jurisdiction of the appointing court, but since, as
appears by the stipulation in the record, such court is in the
State of Kansas, it was not incumbent upon the court below
to obtain such leave of a court in another State. Taylor v.
Columbian Ins. Co. 14 Allen, 353; Folgar v. Columlaian Ina.
Co. 99 Mass. 276; Paige v. Smith et al. Ibid, 395; Fit/lion v.

J. Y. < E. R. R. Co-. 31 Pa. 114. And even where such
leave may properly be sought, the failure to ask or obtain such
leave involves no more than a contempt of the equity court,
but is no bar to the jurisdiction of the court of law, and no
defense to an otherwise legal action on the trial. Kinnay v.
Cracker, receiver, 18 Wis. 83; Chautauqua County Ban]: v.

1tisle_z/, 19 N. Y. 377. We have examined several eases cited
in support of the doctrine that receivers are not amenable to
garnishee process, but it will be found that the decisions in
those cases rest either upon the statutory law of the State ex
empting receivers from such process, Colombian Book Co.
v. De Golly/er, 115 Mass. 69; or upon the ground that the

effect of the judgment would be to disturb the possession ot'
the property, or of some specic fund placed in the hands of
the receiver by the appointing court, and where such property
or fund was claimed by different sets of creditors and claim
ants awaiting nal disposition of the property and fund by
the court under whose order it was held by the receiver;
Tay
lor et al. v. Gllliqn. ct al. '23 Texas, 598; Field at cl. v. Jonas
18
SUPREME Cover or Conouano.

Green et al. v. Morrison.
at al. 11 Geo. 417, or where the receiver was appointed, not to

continue the business. but merely to sell the property and ap
ply the proceeds under order of the court.
Ilooper v. Win
ston, 24 Ill. 354.
In the case before us the proofs taken by the referee show

that the sum due the judgment debtor, with which the receiv
ers were charged as garnishees, was due him as monthly pay
ments or allowances under the operating department of the
business of the railway, and hence the application of that sum
upon the judgment against the creditor of the receiver, to
whom it would have been paid but for the garnishee process,
in no way tends to disturb the rights of the receiver under the
general orders of the appointing court, by which he is author
ized to carry on the business of the railway, and defray the

current expenses therefor. '
Upon this view of the whole case, we cannot nd that the
court below erred in denying the motion of the receivers, and
the udgment will be airmed accordingly.

AI777ctl.'
GREEN ET AL. v. MoRRIsoN.

A third party for whose benet a simple contract has been entered into for
a valuable consideration moving from the promisee may lnaintain an action
in his own name, or may plead it by way of set-off.
Appeal from District Court of San Juan County.

The ease is stated in the opinion.
Messrs. Henson & SLAYMAKER, and Mr. C. S. Tnozsms, for
appellants.
Messrs. W1LsoN, GERRY & TAYLOR, and Mr. Jas. A. Lownn-3,

for appellee.
.
APRIL Team, 1879.
19
ELBERT, J. The complaint alleges that on or about Septem

ber 17th, 1877, defendants executed their promissory note of
that date for $439.45, with interest from date at the rate of
two per cent. per month until paid, payable on or before Oc
tober 10th, to the plaintiff or order; that defendants never
paid said sum of money or any'part thereof either when the
same became due, or at any time since then, and plainti

prays udgment for $139.45, with interest at two per cent. per
month from September 17th, 1877, and for costs of suit.
The defendants interpose the following answer:
I.
The defendants admit that on the day named in said
complaint the defendants executed and delivered to the plain

tiff the note described in the complaint, and that the same is
now due and unpaid.
II.
And for a further defense and for a set-o against the
plaintiff, defendants allege :rst, that on Jul_v 13th, 1877, one Al

fred Moison executed and delivered his promissory note to the
defendants in their rm name of Geo. Greene & Go.,' and
thereby for value received promised to pay to the defendants,
as such partners, in sixty days after said July 13, 1877, the
sum of $1,100, together with interest on said sum from said
date until the same was paid, at the rate of two per cent. per
month.
Second, that on the said date, to secure the payment
of said sum and said note, said Moison executed and delivered
to one N. E. Slaymaker, for the use and benet of the defend

ants, a trust deed upon certain premises situate in the town of
Silverton, San Juan county, State of Colorado, then owned by
said Moison, viz.: lot No. 17, in block No. 11, in said town.
T/u.'r(l, that on July 14, 1877, the plaintiff agreed by and with
said Moison, to purchase from him the said premises at the
agreed price of $1,600, and thereupon said Moison at the re
quest of the plaintiff conveyed the said premises to him, and

one Emile Charest, and thereupon the plaintiff in considera
tion of said conveyance, agreed by and with said Moison, and
then promised to pay to him the sum of $500 in cash, and to
assume and pay to the defendants the amount due from said
20
Moison to defendants upon the note of $1,100, hereinbefore

described, when said note by its terms fell due, the said amount
then being a lien upon said premises, as the purchase-money
for said premises, and then paid said Moison the sum of $500
in cash. Fourth, that the amount due upon said note by the
terms thereof, became due at payable on September 12th

15th, 1877, and that the plaintiff has not paid the same. Fifth,
that the defendants realized upon the security given them by
said Moison, viz., said deed of trust on November 28th, 1877,
the sum of $930, and there is now due and unpaid upon said
note the sum of $263.50, together with interest thereon at the
rate of two per cent. per month from November 20, 1877,
which said sum and interest the defendants claim as a set-off
against any amount which may be due from them to the

plaintiff, upon the cause of action set forth in the complaint
and for which they ask judgment against the plaintiff.
To this answer the plaintiff demurred, assigning as grounds
of demurrer, first, the answer is insufficient in law. Second,
the promises claimed to have been made by plaintiff, consti
tute no ground of defense or set-off. Third, plaintiff
is not liable upon the promises claimed in the answer.
Fourth, the answer set up no ground of defense.
The demurrer was sustained, and the defendants electing to
stand by their answer, judgment was entered for the plaintiff.

The court erred in sustaining the demurrer. The promise
of the plaintiff, set up in the answer, was not an undertaking

to answer for the debt, default or miscarriage of another, but
to pay his own debt in a particular manner. It was an origi
nal undertaking, and not within the Statute of Frauds.
Browne on Stat. Frauds, Sec. 165, 166. A third party, for
whose benefit a simple contract has been entered into for a
valuable consideration, moving from the promisee, may main
tain an action in his own name, or may plead it by way of set
. . off.
Lehow v. Simonton et al., 3 Colorado, 346.
The judgment of the court below is reversed, and cause re

manded.
I'eversed.
APRIL TERM, 1879.
21
Crane et al. v. Chandler.
CRANE ET AL. v. CHANDLER.

1. The chattel mortgage act, upon compliance with which the mortgagor
may retain possession of the property mortgaged, is in derogation of the com
mon law and must be strictly construed.
To be valid as against third per
sons no provision of the act can be neglected.

2. Section 10, p 124 Gen. Laws, does not dispense with the requisites to the
validity of a chattel mortgage, except the recording thereof when the adver
sary party has actual notice.
3. Without an acknowledgment or memorandum a chattel mortgage may

be valid as between the parties, but it has no effect upon the rights of third
parties acting in good faith.
Appeal from District Court of Arapahoe County.

THE facts are stated in the opinion.
Mr. J. W. HoRNER and Mr. R. D. THOMPsoN, for appellants.
Meer. MILEs and ANDREws, for appellee.

THATCHER, C. J. The appellants brought suit in attach
ment against one H. M. Behymer, and under the writ the
sheriff seized a certain lot of personal property. Mrs. Chand
ler filed her interplea, claiming the property. At the trial of
the issue on the interplea, she sought to establish her right to
the property by introducing in evidence two certain chattel

mortgages. It was objected that the notary public before
whom the mortgages were acknowledged, had failed to make a
memorandum thereof in his docket, in conformity with the
statute. Is the memorandum essential to the validity of a
mortgage as against the rights and interests of third persons?

The chattel mortgage act, upon compliance with which the
mortgagor may retain possession of the personalty mortgaged,

is in derogation of the common law, and therefore to be strict
ly construed. To be valid as against third persons, no provis
ion of the act can be neglected.
It is necessary, first, that the
[C LL
SUPREME Coum OF COLORADO.

Crane et al. v. Chandler.
notary or justice of the peace in the precinct where the mort

gagor resides, shall take the acknowledgment of the mortgage
in the manner prescribed by the act; second, that such notary
or justice of the peace shall make in his docket a memoran
dum thereof, in which he shall set out the names of the mort
gagor and mortgagee, a description of the property mortgaged,

and the date of the acknowledgment; third, that the mortgage
shall be then duly recorded in the office of the recorder of the
county wherein the property mortgaged is situated. The court
below ruled in conformity with the views here expressed, but

held that if an attaching creditor had actual notice of such
mortgage, it was, as to such creditor, as valid as though all the
requirements of the statute had been complied with.
The court based its ruling upon section ten of the act (Genl
Laws. p. 12-l:): Any person who may buy or otherwise
obtain any interest in any personal property which is mort
gaged in pursuance of this act, but the mortgage of which
has not been recorded, and with actual notice of such, mort
gage, shall be deemed to have boughtor obtained such inter
est in such property subject to such mortgage, the same as
though such mortgage had been properly recorded. There

was some evidence tending to show that the appellants had
notice of the mortgages. Upon no reasonable construction of
section ten, can it be asserted that any of the requisites to the
validity of a chattel mortgage are dispensed with (where the
adversary party has actual notice), except the recording there
of. As the statute in such case only waives the recording of
the instrument, it is clear that it must still be executed, ac
knowledged, and a memorandum thereof taken by the certify

ing oicer as in other cases. \Vithout an acknowledgment
or memorandum, a chattel mortgage is valid as between the
parties, but it has no effect upon the rights of third parties

acting in good faith, and there is no want of good faith on
the part of a creditor in levying upon his debtors property,
included in a chattel mortgage which the law declares void as
to him." Porter v. De/nent, 35 Ill. 478 ; J10l)0wetl v. Stew
APRIL TERM, 1879.
523
Keystone Mining Co. st al. v. Gallagher et al.
art, 83 Ill. 540.
The ruling of the court was erroneous in
admitting the mortgages to be read in evidence, without the

demanded proof that they were duly acknowledged and a
memorandum thereof taken. As the mortgages are not set
out in the statement on appeal, we are not even informed
whether there was a stipulation therein allowing the mortga

gor to retain possession of the property, nor whether aside
from the memorandum, the acknowledgment was properly
taken. Judgment reversed and cause remanded.
Reversed.
KEYSTONE MINING C0. ET AL. v. GALLAGHER ET AL.

1. The extent of the jurisdiction of the county courts as to their pecuni
ary limit in suits, to enforce lien claims, is to be measured by the amount in
volved in each claim severally, and not the aggregate of all the claims pre
sented against the same property.
Where no one claim exceeds $2,000.00 in amount, any number of claims
may be adjudicated in the same proceeding.
2. The legal effect of the latter clause of sect-ion seven of the act of 1872,
is to give the mechanic, laborer or material man, a lien fro_m the date of the
commencement of the labor or the furnishing of the materials.
3. Under the provisions of section nine of the schedule of the constitution,
the county courts, created by the constitution, were immediately upon the
adoption of the constitution, clothed with all the powers theretofore possessed
by the probate courts.
4. A house built for the use of the mine and being part of the mining
property, may be sold with the mine for the purpose of enforcing a lien un
der the statute. Powder, steel and candles fumished for the use of the mine,
held to be clearly Within the meaning of the statute, and for which u lion
may be enforced.
'
5. Want of personal service and the non-appearance of a defendant, in

an action to enforce a lien claim, will not vitiutc a decree against such de
fendant, although before the commencement of the suit he nail parted with
his interest.
~
6. The statute provides that the premises maybe sold within the time
and in the manner provided for sales on execution issuing out of any court
of record.
24

Keystone Mining Co. et al. v.
Gallagher et al.
Error to County Court of Boulder County.
ON February 14th, 1877, Gallagher filed his petition in the

County Court of Boulder county for a mechanic's lien. The
petition stated substantially that on the first day of August,
1876, and thence until the 15th day of December of the same
year, James W. Strong was the owner of the Keystone lode,
situated in Magnolia mining district, in Boulder county;
that Strong employed the petitioner to do certain work in de
veloping said lode, and that the work was done by the peti
tioner between the first and fourteenth of September, 1876;
also that Strong employed the petitioner on the 14th of Sep
tember, 1876, to work by the day on said lode, and that he
performed labor upon said lode until the 14th day of December,
1876. That Strong was indebted to him for said work, etc.;
and that on the 15th of December, 1876, Strong conveyed
the property to the Keystone Mining Company; and that the
said company was the owner of the property at the time of
filing his petition, on the 22nd day of January, 1877. That on
said last mentioned date, notice and statement were filed in
the office of the county clerk; that William Gillett and others
claimed to have liens, and prayed that they be made defend
ants; and that he might be decreed to have a lien, etc., for the
balance of the amount, $148.31, alleged to be due him. Sum
mons was issued, returnable to the April term, 1877. Some
of the defendants not being served, publication was had. Ap

pearance was entered and answers put in for the various de
fendants, except Strong, who was defaulted June 21, 1877, and
the cause referred to a special master to take proofs. Upon
the coming in of the master's report, on the 25th day of June,
1877, a decree was entered in favor of the several claimants,
exceeding in the aggregate the sum of $2,000, and for a lien

upon the premises in question. It was also ordered that the
several sums, with interest from the date of the decree at ten
per cent. per annum, be paid by July 25, 1877; and in default,
that the master should make sale of the property on the 25th
of August, 1877, upon not less than twenty days notice.
To
APRIL TERM, 1879.
25
Keystone Mining Co. et al. v. Gallagher et al.
reverse this decree, the Keystone Mining Company sued out

a writ of error.
Mr. W. A. HARDENBRook, for plaintiffs in error.

Messrs. BUTLER & WRIGHT and Messrs. BLAKE, WHITLEY
and NoFTH, for defendants in error.
STONE, J. The aggregate amount of the several sums found
due the defendants in error as lien claimants, exceeded two
thousand dollars, and it is assigned for error, that, under the

constitutional limitation of the jurisdiction of county courts
to two thousand dollars as to the amount claimed, the court
below was without jurisdiction to render the decree. We can

not regard the decree as open to this objection. The demands
of the lien claimants are several in their nature, and in the

mode of their enforcement. Each files his separate statement
as the statute requires. Each presents his separate petition to
enforce the lien, and therein sets out his particular cause of
action.
The individual claim of no one exceeds the sum of
two thousand dollars.
The court renders a decree several as
to each claimant, and so long as no one claim exceeds two

thousand dollars, it is no objection that the aggregate amount
of all the claims is in excess of that sum. Each claim so pre
sented is, in its nature, a several and distinct action, but in
order to avoid a multiplicity of writs, sales and costs, and to
prevent preferences among lien claimants arising from priority
of decrees, sales and payments, the statute has provided a mode
of enforcing these several rights, whereby all the claims may
be heard and determined in nominally one proceeding, adju
dicated at one time, and enforced under one decree; a mode
which was evidently intended to be the most equitable and the
least expensive. In the case of Powers et al. v. McCord, et

al. 36 Ill. 221, the court, in discussing the provisions of the
statute requiring the court to ascertain the amount due each

creditor, and to direct the application of the proceeds of sales,
say:
These provisions are peremptory, and the court, on
26
SUPREME CoUR'r or COLORADO.

Keystone Mining Co. cf al. v. Gallagher et a.l.
the trial, must ascertain the sum due to each claimant before a
decree is rendered, directing the sale of the property, and the
application of its proceeds to the claimants in proportion to
the amount found due to each, if not suicient to pay all of

their claims. It may be, and perhaps is, the better practice
to empanel a jury to pass upon and nd the amount due each
claimant, as though t/Lay were separate proceedings.
But
where there are but few parties, and the claims are not com
plicated, no objection is perceived to submitting the whole
case to the same jury.' But a nal decree, ordering a sale of
the property, should not be rendered until the sum due each
of the claimants is ascertained. Then their several rights

should be declared in the decree, and the property sold, if pay
ment is not made by the day xed in the decree, to satisfy the
sums due to the several claimants.
We think the intent of the statute is manifest. and that it
was competent for the legislature to provide that any number
of claims against the same property, where no one exceeds

$2,000 in amount, may be adjudicated in one proceeding with
out infringing the constitutional limitation referred to. In
this view, we think the extent of the jurisdiction of county
courts, as to their pecuniary limit in these cases, is to be meas
ured by the amount involved in each claim severally, and not
the aggregate of all the claims presented against the same
property. The record shows that the property, previous to
December 15th, 1876, was owned by one Strong and others, by
whom the claimants were severally employed to do the work
and furnish the materials for which the liens were claimed.
That such work was continued up to the said 15th day of De

cember ; that on that date the property was purchased by the
Keystone Mining Company, to whom it was conveyed by good
and suicient deed, and that the lien statements of all the
claimants were led with the county clerk in the manner pro
vided by statute in the following month, January, 1877. Upon
this state of facts, it is claimed by plaintiffs in error that no
valid decree could be rendered against the Keystone Mining
APRIL TERM, 1879.
27
Keystone Mining Co. et nl. v. Gallagher et al.
Company, for the reason that at the time the property was con.
veyed to the company there were no liens in existence; that
such liens only attach from the date of ling the statements
required by statute. This construction cannot be given to our

statute. The identical point has been passed upon by this court
in the case of Mellor v. Valentine, 3 Col. 258, where it is held
that the legal effect of the latter clause of section 7, of the act
of 1872, which declares that all liens herein p'rovided for shall
be preferred to every other lien or incumbrance which shall
attach upon any property made subject thereto subsequent to
the time when the work or labor was commenced, or the rst
of the materials furnished; and also to all mortgages and en
cumbrances unrecorded at the time such work or labor was
gommenced, or the rst of' such materials were furnished, etc.,
is to give the mechanic, laborer or material man a lien from the

date of the commencement of the labor or the furnishing of
materials. The same construction and legal effect is given to
a similar provision of a statute by the Supreme Court of Iowa,
in the case of Monroe v. West, 12 Iowa, 121.
See also Phil
lips on Mechanics Liens, Sec. 228.

Another point made by counsel for plaintiffs in error is, that
the county courts, being created by the constitution, were
without jurisdiction except such as given by the constitution
expressly in relation to the estates of deceased persons, until
further powers were conferred by law, which was not done
until the acts of the General Assembly of the State in relation
thereto took effect, June 22, 1877.
This position is untenable,
not because of the provisions of Sec. 8 of the schedule, cited by

counsel, and which we conceive does not confer the jurisdic
tion claimed by such courts prior to June 22, 1877, but by the
provisions of Sec. 9 of the schedule of the constitution, which
are that The terms probate court, or probate judge,
whenever occurring in the statutes of Colorado Territory,

shall, after the adoption of this constitution, be held to apply
to the county court or county judge, and all laws specially
applicable to the probate court in any county shall be con
28
Surnmn-3 Co1;r.T or COLORADO.

Keystone Mining Co. et al. v. Gallagher et al.
strued to apply to and be in force as to any county court in
the same county until repealed. Under this provision, upon

the adoption of the constitution, the county courts created
thereby were immediately clothed with all the powers thereto
fore possessed by the probate courts.
All the lienors except Blodgett, claim for work done and
materials furnished in the mine and for the working of the
mine directly. Blodgetts claim is for furnishing the mate
rials for and building a house or shop contiguous to the mine,
and built for the use of the mine under the direction of the
mining superintendent. The house was owned by the owners
of the mine, and was a part of the mining property, and we
see no error in the decree in favor of Blodgett and for the sale
of the house, together with the mine, for the purpose of enforc
ing the liens.
The proofs to establish the claims of (Joan and Gillet were
sufficient to warrant the decree as to them respectively.
It is objected that the decree as to Boettchers claim is
erroneous, because the articles furnished by him were not of
the character comprehended by the lien law, specifying tim
ber or other materials to be used in or about the mine. The
testimony shows that the articles furnished were powder, steel,
and candles, for the use of the mine.
These articles are as
clearly within the meaning of the statute as anything we can

conceive of essential to the working of a mine.
That Strong was not personally served, and did not appear,
is no ground of error in the decree. Service as to him was
made by publication, in accordance with the statute providing
for such case. The only other assignment of error necessary
to notice is, that the decree provided for a sale in less than
ninety days.
The act under which the proceedings were had provides, that
the premises may be sold within the time and in the manner
provided for sales on executions issued out of any court of
record. That the sale was made in accordance with the statute
appears by the record. The regularity of the decree in this
APRIL TERM, 1879.
29
Barndollar et al. v. Patton. ,
respect, therefore, cannot be questioned. The Illinois cases cited

by counsel upon this point are not apt, inasmuch as the sales
referred to in those cases were fixed by the lower court in its
discretion, and the Supreme Court held that, in the absence of
statutory provision governing the length of notice, the time
should not be less than ninety days, that being the ordinary
lifetime of an execution in chancery proceedings in that State.
There being no error in the proceedings, the decree of the

court below is affirmed.
Decree affirmed.
BARNDOLLAR ET AL. v. PATTON.

Deficiencies in a record cannot be supplied in this court by ex parte affi
davits. Where an amendment is desired to a sheriff's return application
must be made in the court below.
Error to County Court of Pueblo County.

THE defendant in error filed in this court an affidavit of the
sheriff of Pueblo county, to the effect that he had served the

summons issuing out of the county court in said action by
delivering to each of the defendants therein a true copy, etc.
The plaintiff in error moved to strike the affidavit from the

files.
Mr. THOMAs T. PLAYER, for plaintiff in error.

Mr. A. B. PATTON, prose.
PER CURIAM. The motion in this case must be allowed.
Deficiencies in the record cannot be supplied by ex parte affi
davits.
If the defendant in error desires to have the sheriff
amend his return, he must apply to the court below. The affi
30
Wyman v. Colorado Nat. Bank.
davit might be considered in support of a motion for a stay of

proceedings in this court until such application could be made,
but there is no such motion interposed, and the affidavit must
be stricken from the files.
The case of De Armond et al. v.
Adams et al. 25 Ind. 457, cited by the defendant in error, does

not lay down any different practice, as is claimed.
Motion allowed.
WYMAN v. ColoRADo NATIONAL BANK.

4O C R / 3 >
1. Plaintiff drew his sight drafton Din London, payable to the order of C, a
banker, delivered it to C to collect and place to account of plaintiff; C trans
mitted the draft to defendant, endorsed, Pay to the order of the Colorado
National Bank for account of C; C was indebted to the Colorado National
Bank (defendant) at the time for balance, overdraft. The draft was paid;
after payment, but before proceeds came to defendants hands, defendant was
notified that plaintiff had delivered the draft to C for collection, and that
plaintiff claimed the proceeds; held, that defendant was not liable in assumpsit
for the proceeds.
2. The possession by an indorsee of negotiable paper imports prima facie

that it was acquired bona fide for full value in the usual course of business
before maturity, and without notice of any circumstance impeaching its

validity, and that such holder is the owner, and entitled to recover the full
amount against all prior parties.
3. By the law merchant a banker has a general lien on all securities
deposited with him by a customer, for his general balance, unless there is a
contract, express or implied, inconsistent with such lien, and of this the
court will take judicial notice.
4. It is an elementary rule that whenever one of two parties must suffer by

the act of a third, he who has enabled that third person to occasion the loss,
must sustain it himself rather than the other innocent party.
Error to County Court of Arapahoe County.

THE facts are sufficiently stated in the opinion.
Mr RADCLIFFE B. LockwooD, for plaintiff in error.
APRIL TERM, 1879.
31

*
Messrs. CHARLEs & DILLON, for defendant in error.
STONE, J. Plaintiff in error (and plaintiff also in the court

below), on the 10th day of January, 1877, drew his sight draft
on one George G. Dainty, Rugby, England, for the sum of one
hundred pounds sterling, payable to the order of George C.
Corning, a banker of Boulder, Colorado, and delivered the
same to the said Corning to collect and place to the credit of
the plaintiffs account at the bank of the said Corning, at
Boulder. Corning immediately transmitted the draft by let
ter to the defendant, which letter is as follows:
BoULDER, CoLoRADo, Jan'y 13, 1877.

W.M. B. BERGER, Esq.,
Cashier, Denver:
DEAR SIR: Your favor of the 12th is received with enclos
ure as stated. We credit $10.00, and your No. 49,788, $26.15;

no protest.
Respectfully Yours,
GEORGE C. CoRNING,
Thompson.
I inclose for collection and credit my
No. 2385, Norwood, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100.00
My No. 2384, Dainty, England, . . . . . . . . . . . . . . . . . . . $100.00

The draft was endorsed as follows:
Pay to the order of the Colorado National Bank for ac

count of George C. Corning, Boulder, Colorado.
At the time the draft was thus received by the defendant,
Corning was indebted to the defendant in the sum of $10,
975'., for balance of overdrafts.
On the 28th of February, the defendant was advised by its
New York correspondent that the draft had been paid. A
few days previous to this date, defendant was informed by
telegraph from its said New York correspondent that the lat
ter had been notified by telegraph that the draft belonged to
Wyman, who had delivered it to Corning for collection, and
that as Corning had failed, Wyman claimed the proceeds of
SUPREME Cou RT OF COLORADo.
32

f
the draft. This notice was before the proceeds had come into
the hands of defendant, but after the draft had been paid in
London. On the 15th of March, plaintiff, through his attor
neys, notified the defendant by letter that he claimed the pro
ceeds of the draft, and demanded payment thereof. The exact
date of the failure of Corning is not given in the record, but
from the testimony referring thereto, it appears to have been
in the latter part of February. From the evidence preserved
in the record it appears, both by the testimony of Thompson,
cashier of the Boulder bank (which was owned by Corning),
and by copies of the book accounts of both banks, that the two
banks were mutual collection agents, correspondents, and de
positaries for each other in respect to funds collected for and
remitted by and to each, according to the usual course of bank
ing business. The checks of each bank were paid by the
other, and transactions embracing collections, checks and re
mittances of daily occurrence were debited and credited on the
books of each, and a settlement of accounts was had upon the
first of each month.
By frequent remittances by Corning and credits to his ac

count, the balance of nearly eleven thousand dollars against
him at the date of the draft in question, was gradually re
duced, so that at the time he was credited with the proceeds
of the draft, the balance against him was but little over seven
hundred dollars.
Between these dates this balance had fluct
uated considerably; for example, on the 17th of January it

had become reduced to $5,111', while on the 29th of the
same month the amount had increased to $8,225'.
Plaintiff brought his action in assumpsit on the common

counts to recover the amount of the draft.
Trial was had to
the court and judgment rendered in favor of defendant for

costs. Plaintiff brings the record to this court for review, and
assigns for error, the finding and judgment of the court below
upon the facts as we have substantially stated them.
The principal question to be determined is, whether upon

the facts in the case the defendant, when he received the draft
APRIL TERM, 1879.
33
from Corning, became a bona fide holder for value or upon a

sufficient consideration, and without notice of any infirmity
of title as between antecedent parties, so as to be protected
from the equities of the plaintiff.
That one who acquires negotiable paper in good faith for a
valuable consideration from one capable of transferring the
same, becomes a bona fide holder, unaffected by prior equities,
-
unless it be shown that he had notice thereof, is a fundamental
principle of commercial law.

The indorsement of Corning as payee, was sufficient to trans
fer the legal title of the draft to the Colorado National Bank,
and vest in it the complete ownership. The possession of the
paper by the defendant as such indorsee, imported prima
facie that it was acquired in good faith for full value, in the
usual course of business, before maturity, and without notice
of any circumstances impeaching its validity; and that such

holder was the owner thereof, entitled to recover the full
amount against all prior parties. 1 Daniels on Negotiable In

struments, Sec. 812. And although the burden of proof may
be shifted during the course of the trial, yet when such pos
session is once shown, the burden of proof is then upon the
one seeking to impeach any of the elements of validity or

rights of the holder which such possession implies.
Ibid.
We cannot find that there was any evidence offered to rebut
the presumptions fairly arising in favor of the defendant. Re

ceiving the draft in the usual course of business from the
payee, who was largely indebted to the bank, and who endorsed
the paper for account of himself specially, and who trans
mitted it with directions for credit as well as for collection, .
the officers of the bank so receiving may well have inferred

that Corning was the owner of the draft, and intended the
proceeds to be applied in extinguishment pro tanto of his in

debtedness to defendant. True, the defendant was notified
that plaintiff was the equitable owner of the draft, before the
proceeds had come into possession of the defendant, but this

was unavailing against the right acquired by defendant imme
3
34
SUPREME CouRT OF COLORADo.

Wyman v. Colorado Nat.
Bank.
diately upon receipt of the draft, to retain the proceeds against

the balance due from the endorser.
Clark v. The Merchants
Bank, 2 N. Y. 384. In Vol. 1, of his work on Negotiable In

struments, Sec. 823, Mr. Daniel, in treating of the rights of a
holder of a negotiable instrument as collateral security for a
debt, says: The test question then is simply this: has there
been a change in the legal rights of the parties? If so, the
transfer is irrevocable without the holder's consent.
Here,
as we have shown, the transfer being valid, without notice of

prior rights, and upon a sufficient consideration, there was a
complete change in the legal rights of the parties. The legal
title passed from the plaintiff, and became vested in the defend
ant. In respect to the consideration, it is well settled by the
great weight of authority, that the endorsee of a negotiable
instrument received in payment of, or as security for a pre-ex
isting debt, is a bona fide holder for a valuable consideration,
and entitled to protection as such. Allaire v. Hartshorne, 1
Zabriskie, 665; Atkinson v. Brooks, 26 Vt. 569; Bank of Re
public v. Carrington, 5 R. I. 515; Brush v. Scribner, 11

Conn. 388; Manning v. McClure, 36 Ill. 490; Smith v. Ty
son, 16 Peters, 1.
By the law merchant a banker has a general lien on all se

curities deposited with him by a customer, for his general bal
ances, unless there be an express contract, or circumstances
that show an implied contract inconsistent with such lien, and
of this the court will take judicial notice. Brandas v. Bar
nett, 3 Manning, G. & S. 530.
In this case there is nothing in the evidence to show that
the draft in question was received under special circumstances,

such as would take it out of the common rule of lew mercato
ria. The circumstances of the case in The Bank of the Me

tropolis v. The New England Bank, 1 Howard, 234, are al
most identical with those of the case before us.
The New
England Bank delivered to the Bank of the Commonwealth

negotiable paper for collection. The Bank of the Common
wealth transmitted the same to the Bank of the Metropolis,
APRIL TERM, 1879.
35
which latter bank made the collection and retained the pro
ceeds for the balance owing it by the Bank of the Common

wealth, which failed while the funds were in the hands of the
Bank of the Metropolis.
In reversing the judgment which
the New England Bank obtained in the Circuit Court against
the Bank of the Metropolis, for the amount of funds collected,

Chief Justice Taney, in delivering the opinion of the Supreme
Court of the United States, says: It is evident that a loss
must be sustained, either by the plainti' or defendant in error,

by the failure of the Commonwealth Bank. \Ve see no
ground for maintaining that there is any superior equity on
the side of the New England Bank. It contributed to give
to the corporation, which was proved insolvent, credit with
the plainti' in error, by the notes and bills which it placed in
its hands to be sent. to Washington for collection, indorsed in
such a form as to make them pm';na faoie the property of the
Commonwealth Bank, and enabled it to deal with them as if
it were the real owner. The Bank of the Metropolis, on the
contrary, is in no degree responsible for the condence which
the defendant in error reposed in its agent. When this mis
placed condence has occasioned the loss in question, it would
be unjust to throw it upon the bank which has been guilty of
no fault or want of caution, and which was induced to give the
credit by the manner in which the defendant in error placed
its property in the hands of an agent unworthy of the trust.
The case coming up again to the Supreme Court, the same
learned judge, in laying down the proper instructions which

should have been given the jury, says: But if the jury found
that in the dealings mentioned in the testimony, the Bank of
the Metropolis regarded and treated the Commonwealth Bank
as the owner of the negotiable paper which it transmitted for
collection, and had no notice to the contrary, and upon the
credit of such remittance made or anticipated in the usual
course of dealing between them, balances were from time to

time suffered to remain in the hands of the Commonwealth
Bank, to be met by the proceeds of such negotiable paper,
36
SUPREME CourT OF COLORADO.

then the plaintiff in error is entitled to retain against the

defendant in error for the balance of account due from the
Commonwealth Bank. Same case, 6 Howard, 662.

The correctness of this rule is affirmed in Sweeney v. Easter,
1 Wallace, 166, and the same doctrine is held in the case of
Clark et al. v. The Merchants Bank, 2 N. Y. (Court of

Appeals), 380. We think the rules thus laid down apply with
peculiar force to the case at bar. The credit here given was
in allowing balances to remain in the hands of the Boulder
Bank, to be met by the proceeds of such negotiable paper,
among other remittances, which the evidence shows was from
day to day received and applied in the extinguishment of these
balances.
**
There is, too, in such cases, a certain credit given to the

debtor, arising out of the forbearance of the creditor in suffer
ing the balances to remain overdue. Atkinson v. Brooks,

supra; Bank of the Republic v. Carrington et al. supra, p. 552.
And this consideration is much stronger in this case, where a
large balance was allowed to remain beyond the periodical
monthly settlements or statements of account rendered, and
where such balance was all on one side.
In this, as in all
other like cases, there is a hardship in the loss, let it fall upon
either the plaintiff or the defendant, but it is an elementary
rule that whenever one of two parties must suffer by the act of
a third, he who has enabled that third person to occasion the
loss must sustain it himself rather than the other innocent
party. The court below evidently found that the facts in this
case bring it within the law which governs in the case of a
bona fide holder of negotiable paper for value and without
notice, so as to discharge the defendant of the equities be
tween the original parties, and as we think the finding was
warranted by the evidence, we see no reason to disturb the
judgment.
Judgment affirmed.
APRIL TERM, 1879.

Manning v. Haas.
37
MANNING v. HAAs.
1. In pleading under the Code, facts should be stated with certainty.
2. The execution of a note is a traversable fact, and it is a rule of plead
that it is necessary to state a time when every material or traversable fact
happened.
**
8.
Under the Code the objection for uncertainty is raised by demurrer.

ACTION on a promissory note made by Haas, the appellee, to
Spencer, and indorsed to Manning. In the district court Haas
interposed a demurrer to the plaintiff's complaint, and for
cause alleged that the complaint did not state facts sufficient
to constitute a cause of action, in that it failed to state the
date of the note sued upon, and because the complaint was
otherwise uncertain, unintelligible and indefinite.
Messrs. STALLCUP & LUTHE, for appellant.
Mr. J. F. WELBoRN, for appellee.
ELBERT, J. The objection taken to the complaint by the
demurrer in this case, is that it fails to state the date of the
note sued upon. The allegation of the time when a contract

was entered into is always essential to a definite description,
and may be necessary to show a present right of action.
The execution of a note is a traversable fact, and it is a rule
of pleading that it is necessary to state a time when every

material or traversable fact happened. Again, it is a rule of
pleading that facts should be stated with certainty; and under

this head Mr. Bliss, in his work on Code Pleadings, says:
* * * There can be no definite description of any event

without some reference to the time of its occurrence; and in
time contracts, no liability could be shown unless the date of

the contract were given. Ordinarily, the omission of an alle
3S

Board of Co. Com. etc. v. Sloan et al.
gation in regard to time would be a defect of forma want of

definiteness and certainty in description, to be corrected by
motion; but in the case last supposed, when an obligation falls
due a certain period after it was entered into, unless it was
shown when the contract was made, the pleading would be
demurrable, as not showing a liability. * * * The rules in
regard to time, as enforced in common law and Code pleading,
are substantially the same, although, so far as the allegation
was merely formal, it may be omitted. Thus it was necessary
to give time and place in stating every traversable fact, and
hence we find running through the pleading and accompanying
every allegation, the on, &c., and at, &c., or the then
and there. This formality is no longer respected, and the
time should be given or be repeated only as necessary to a clear
understanding of the facts. Sec. 296. Under our Code the
objection for uncertainty is raised by demurrer. Sec. 51.
The court below properly sustained the demurrer, and the
judgment is affirmed.
Judgment affirmed.
-
BOARD OF COUNTY COMMISSIONERS OF PUEBLO County

V. SLOAN ET AL.
1. Jn an action brought by one for the use of another, it is unnecessary to
allege or prove the use. ,
2. In debt on a bond, previous demand for payment is unnecessary.
Appeal from District Court of Pueblo County.

THE case is stated in the opinion.
Mr. C. S. THOMAs and Mr. A. A. BRADFoRD, for appellant.
Mr. CHAs. E. GAST AND Messrs. WELLs, SMITH & MACON, for
appellee.
APRIL T121211, 1879.
30
C. and G. R. C0. v. The People.
ELBERT, J. This is an action of debt on bond, and the

pleader, i_n drafting his declaration, has followed approved com
mon law precedents.
The two special causes of demurrer are
all we need notice.
I. Where an action is brought by one for the use of an

other, it is unnecessary to allege the use, or, if alleged, it is
unnecessary to prove it. Patton v. Ooan at al. 3 Col. 265;

Cody v. Buttereld, 1 Col. 380.
II. No previous demand was necessary to impose on the
defendants the obligation to pay, nor to render them liable on
their bond.
1 Chittys Pl. 330, 331, and notes.
The demurrer should have been overruled.
The judgment of the court below is reversed, and the cause

remanded.
Reversed.
Mr. JUSTICE SroNE, being a party, did not sit in this case.
THE CENTRAL AND Gnonenrown Roan Co. V. Tun

PEOPLE EX REL. TAYLOR.
.
1. It seems that under the constitution so much of any act as is not directly
germane to the subject expressed in the title. is without force. That the pro
vision of the constitution is a mandatory declaration of an essential condi
tion to the validity of legislative enactments.
2. Under chapter twenty-ve of the Code, a proceeding instituted for the
purpose of remedying the usurpation or misuse of a corporate franchise or a
public oice, is by civil complaint and summons. The criminal form of the
old action is snperceded by civil action. In tenns, chapter seventy-three of the
Revised Statutes authorizing proceedings by qua warranlo, is repealed by sec
tion 477 of the Code.
3. It seems thata mere statement of legal conclusions, with a demand that
the defendant show by what authority it exercises a franchise, as was anciently
toferated when the proceeding was by information in nature of a quo war
mnto, would not be sufficient under the Code.
40
C. and G. R. Co. v. The People.

4. A defect in pleading may be aided by pleading over.
5. A toll road company organized under the incorporation act of 1864
(Laws 1864, p. 66, 28), may not establish and collect tolls at two gates
distant less than ten miles from each other.
6. When the interpretation of a charter is doubtful, that construction is to
be given to it which is most favorable to the public, provided it be equally

reasonable.
7. It is competent for the commonwealth, through its courts, to waive a

forfeiture of a charter, and it is generally its duty to do so when the infrac
tion of its provisions is not willful.
Appeal from District Court of Clear Creek County.

Mr. WILLARD TELLER, for appellant.
Mr. THOMAS MITCHELL, for appellee.
THATCHER, C. J. Under chapter twenty-five of our Code
of Civil Procedure, the district attorney of the first judicial
district, in the name of the people, upon the relation of Frank
M. Taylor, filed a civil complaint, and caused a summons to
issue to the defendants in substantial compliance with the pro
visions of the Code.
The first question that presents itself for our consideration,

is the validity of chapter twenty-five, which concerns Actions
for the usurpation of an office or franchise. The title of the
Code (of which this chapter is part) is An act providing a
system of procedure in civil actions in the courts of justice of
the State of Colorado.
Our constitution provides (Sec. 20, Art. 5): No bill * * *

shall be passed containing more than one subject, which shall
be clearly expressed in its title; but if any subject shall be
embraced in any act which shall not be expressed in the title,
such act shall be void only as to so much thereof as shall not

be so expressed.
Omitting the importantitalicised words, the constitutions of
the States of California and Ohio contain the same provision.
Aruu. TERM, 1879.
41
By the Supreme Courts of those States, it is held that this

provision is not mandatory, and that a law passed in violation
thereof would not be void. In Pieqvont v. Crouch, 10 Cal.
315, Mr. Justice Field, speaking for the court, says: The
object of the constitutional provision was to secure some con

gruity or connection in the subjects embraced in the same
statute, but as the provision is merely directory, it can only
operate upon the conscience of the law maker. It creates a
duty of imperfect obligation, for the infraction of which there
is no remedy in the courts. In Pim '0. Nicholson, 6 Ohio
St. 180, construing the same provision, the court uses this
language: This provision being intended to operate upon
bills in their progress through the General Assembly, it
must be held to be directory only. It relates to bills, and not
to acts. It would be most mischievous in practice, to make
the validity of every law depend upon the judgment of every
judicial tribunal of the State. as to whether an act or a bill
contained more than one subject, or whether this one subject
was clearly expressed in the title of the act or bill. * * * No

practical benets could arise from such inquiries. We are
therefore of the opinion that in general the only safeguard
against the violation of these rules of the houses, is their regard
for and their oaths to support the constitution of the State.

The added words in the section of our constitution are
quite signicant, and apparently employed for the purpose of
avoiding the construction placed upon the rst part of the pro
vision by the courts of California and Ohio. - Perhaps there
is no escaping the conclusion, that under our constitution, so
much of any act as is not directly germane to the subject ex

pressed in the title, is without force ; that the provision
instead of being only a rule of the General Assembly to regu
late their procedure, is a mandatory declaration of an essential
condition to the validity of legislative enactments.
If this be
its true construction, it follows that if a proceeding instituted

for the purpose of remedying the usurpation or misuser of a
corporate franchise, or a public ofce be in its nature substan
42
Sornmn: Counr or COLORADO.

C. and _G. R. Co. v. The People.
tialby criminal, chapter XXV of the Code, is without validity.

Under this chapter the proceeding is by civil complaint and
summons. The criminal

seded by a civil action.
of the old proceeding is super
In terms chapter seventy-three of the
Revised Statutes, authorizing proceedings by information in

the nature of a guo warranto is repealed. Code, Sec. 477. In
obedience to the universally recognized rule that a sovereignty
conferring a franchise may at any time, in its own appointed
way and forms, inquire into the manner in which the franchise
granted is used, we entertain no doubt of the validity of chap.
XXV, nor of section four hundred and forty-seven of the Code.

Potters Law of Corporations, Sec. 665.
VVhatever may be the form of the action prescribed by the
General Assembly, whether by information in the nature of
guo 'wa'rra.nt0, or by the ancient writ of guo warranto, or by
Culnplftlflt under the Code in a civil action, the objects to be
attained are identical, and the proceeding is, in substance,
civil, instituted for the determination of purely civil rights.
High Ex. Leg. Rem. Sec. 591 ; A'ing v. Francis, 2 Term R,
484 ; Augell and Ames on Corporations, Sec. 733; Common

wealth v. (]om1ni.ssz'oners, etc. 1 Serg. & Rawle, 380 ; Com
mercial Bank, etc. v. The State of Jllississippi, 4 Smedes &

Marshall, 504 ; The People v. Utiea Insurance O0. 15
Johns. 386 ; The People v. 00070, 8 N. Y. 70 ; State ea: rel.
Page v. Smith, 48 Vt. 282.
We therefore conclude that the proceeding under the Code

was properly instituted. The complaint alleges that the Cen
tral and Georgetown Railroad Company was incorporated on
the thirteenth day of October, 1864-, under the provisions of
the General Act of the Territory of Colorado, entitled An
act to amend an act to enable road, ditch, manufacturing and
other companies to become bodies corporate, approved March

11tl1, 1864; that the said company, in execution of the powers
conferred upon them by the said act, erected in the year 1864,
a toll gate upon their route at Fall River, in Clear Creek coun
ty aforesaid, and applied to the county commissioners of said
APRIL TERM, 1879.
43
county to prescribe the rates of toll to be collected thereat;

that the said commissioners did, in October, 1864, prescribe
such rates, and the said company have ever since collected tolls
at said gate, and still continue so to do; that in the month of
March last past (A. D. 1878), the said company erected a toll
house at a point upon their route, between the town of George
town, one of the termini of said road, and Fall River aforesaid,
in the county aforesaid, and have posted upon said house a no
tice of the rates of toll demanded by them thereat; that it is
less than ten miles from the said toll gate at Fall River to the
said last mentioned toll house, and that the rates of toll posted
thereat as aforesaid have never been prescribed by the county
commissioners of, or any tribunal transacting county business
in, said Clear Creek county, as required by law; that the said
company, for the space of at least three months last past, have
exercised without any warrant, charter, or grant, the franchise
of collecting toll at said last mentioned toll house, and have

demanded and collected thereat large amounts of toll from a
large number of persons traveling over said road between
Georgetown and Fall River aforesaid, and intermediate points,
and still continue so to do: wherefore judgment is demanded_
1st.
That the said defendant be excluded from all corporate
rights, privileges and franchises; 2nd. That the said corpora

tion be dissolved; and 3d. For costs of this action; and for
such other and further relief in the premises as the case may
require, and to the court may seem just.
To this complaint a demurrer was led and overruled. A

question is made in this court whether the complaint sets out
the facts constituting the usurpation or cause of action within
the meaning of the Code. Doubtless the mere statement of
legal conclusions, with the demand that the defendant show by
what authority it exercises a franchise, such as was anciently
tolerated when the proceeding was by information in the na

ture of a quo warranvto, would not be suicient under the Code.
Slate v. Jllessmore, 14 Wis. 120. Although the cause of ac

tion is perhaps defectively set out, as the case is not now be
44

fore us on demurrer, and as the subsequent pleadings aided the

complaint in this respect if it be defective, we do not deem it
necessary to notice this objection. Delamar et al. v. Hard, 4

Col. 1; Goulds Pl. p. 154, Sec. 192.
By the pleadings and evidence, the question is squarely pre
sented whether a toll-road company organized under the In
corporation Act of A. D. 1864 (Laws of 1864, p. 57, See. 28),
may establish and collect tolls at two gates, distant less than
ten miles from each other. The section under which the com
pany was incorporated provides that said company shall have
the right * * * to erect toll gates, not to exceed one to

every ten miles of road, and to collect tolls thereat at the rates
prescribed by the count_y commissioners or the tribunal trans

acting county business, which rates shall be written, printed
or painted in a legible manner, and conspicuously posted at
each of such gates. The evidence shows that the Fall River
gate and the gate near Lawson were distant eight miles from
each other. The Fall River gate was rst established. By the
board of commissioners, at a. duly convened meeting in Octo
ber, A. D., 1864, it was inter alia, ordered: And it appearing
to said board that said corporation desire to erect toll gates on
said road, according to law, and desire said hoard to x and
establish the rates of toll at any such toll gate or gates:
Now
therefore, we, the said board of county commissioners, in con
sideration of the premises, and by virtue of the power and

authority vested in us by law and by the act aforesaid, do order,
adjudge and decree that the said corporation, styled The Cen
tral and Georgetown Road Company, may erect toll gates upon
said road, not to exceed one to every ten miles of said road,
and may charge toll at said toll gate or gates, and the rates of
charges at any such toll gates shall be as follows, etc.
It is needless to say that the board of county commissioners
was powerless to authorize the erection of and taking of toll at
more than one gate to each ten miles. Their whole author
ity in the premises is based upon the statute under which the
company was organized, and it is to be presumed that the
APRIL TERM, 1879.
45
rates of toll were established in view of the existing law_
The defendant contends that the language of the statute is

complied with, if t\vo or more gates be erected within a space
often miles, provided that the whole number of gates erected

on the road does not average in excess of one to each ten miles.
This is a possible construction, but we do not think a reasonable
one. It is not in the interest of the public that the gates

should be close together. When the interpretation of a. char
ter is doubtful, that construction is to be given to it which is
most favorable to the people, provided it be equally reasonable.

The learned judge of the court below in his opinion led in
this case, pertinently remarks upon the point under considera

tinn, as follows: No other act, prior or subsequent, affects
the status of a wagon road company organized under the
law of 1864, either by extending or curtailing its powers, fran
chises and privileges; hence we must look to the act of 1864
as the source of all the powers and privileges granted to the

defendant. It is argued by counsel for the defendant that
this act did not x the distance between gates, but only re
stricted the number of gates in respect to the entire length of
the road, the limit being one gate to ten miles of road, which
would entitle the company to two gates for twenty miles, leav
ing the place of location to the option of the company. If
this be the proper construction of the statute, then the two
gates upon the twenty miles of road may be located within

one mile, or even a shorter distance of each other. The conse
quences of such a construction of the statute would be both an
inconvenience and an injury to the public. The greater por
tion, perhaps, of the travel upon a public road, is only over a
portion of its entire extent, coming as it does from converging

and intersecting roads.
Under the rule contended for by de
fendant, it would be in the power of the company to impose

the same burdens and inconveniences upon the traveler
passing over about one-half of the road, as upon those passing
over the entire line. This would be inequitable, and could
not have been contemplated by the law makers; hence this
46
SUPREME Conar 01- CoLor..u)o.

Barndollar et al. v. Patton.
construction of the act of 1864 must be rejected as unreason

able. The intention must have been to limit the distance
between the gates to not less than ten miles.
We are in full accord with the views here expressed, and are
consequently of opinion that the gate near Lawson was estab
lished, and toll collected thereat without authority of law. We
do not wish to be understood as intimating that in no event
may there be two gates, where the length of the road is more
than ten and less than twenty miles, or that if the entire length
of the road is not ten miles there can be no gate. What we
do decide is \that wherever there are two gates or more.
the distance between them must be not less than ten miles.
The court found that the defendant was guilty of unlawfully
erecting and maintaining a toll house near Lawson, as a toll
gate, and was collecting tolls thereat without authority of law;

wherefore it was adjudged that the defendant be excluded from
further exercising the right and privilege of collecting tolls at
the said toll gate, and that the defendant pay the costs of the
action. It is competent for the commonwealth, through its
courts, to waive a forfeiture of a charter, and it is generally its

duty to do so where the infraction of its provisions is not will
ful.
Under the circumstances of this case. the judgment of
the court in excluding the defendant only from the right and
privilege of collecting toll at the gate near Lawson, was, we
think, a proper judgment, and it will be atrmed.

Airmed.
BARNDOLLAR ET AL. v.
PATTON.
1. Under the Code (section 30), when a writ of summons is quashed be

cause fatally defective in form, a new writ may be awarded by order of the
court.
2. Under the Code (section 31), a statement in the summons that said
action is brought to recover of the defendants herein named, the sum of
APRIL TERM, 1879.
47
Barndollar et a.l. v. Patton.

seven hundred twenty six and 51-100 dollars, evidenced by a promissorv note.
dated December 1, 1873, which is more fully set forth in the plaintiff's com
plaint, led in this court in this action duly veried. together with interest
and the costs of this suit." Held, a suicient compliance with the section re
quirihg the general cause and nature of the action" to be stated in the sum
mons.
3. Under the Code (sections 144, 150), judgment may be rendered in
vacation.
4. In an action in a county court where it appears from the complaint
that the sum sought to be recovered does not exceed two thousand dollars.
a special jurisdictioualavennent is not essential under the statute (section
572, Gen. Laws, 1877).
Error to County Court of Pueblo C'o'unt_z/.

Mr. Tnomss T. PLAYER, for plaiuti's in error.
Mr. A. B. PATTON pro ae.
Sworn-2. J. It is assigned for error, rst: that the second
summons was issued more than thirty days after the ling of
the complaint. Sec. 30 of the Code provides that at any time
within one mouth after the ling of the complaint the plain
tiff may have a summons issued. This clearly refers to the
summons rst issued in the case. The Code makes no provis
ion for an alias summons. The Supreme Court of California,
in considering a like feature of the Code of that State, in the
case of Dupuy v. Shear, 29 Cal. 2-10, say: A technical alias
summons is not known to our law, and in fact, under our sys
tem of practice, there is no necessity for one.
The summons
species no return (lay, and when it has once been issued, it
may be served and returned at any time without reference to

the time of the commencement of the next term of court. * * *
If more than one summons is authorized by the Practice Act,
the second has no necessary connection with, or dependence
upon the rst. It is based upon the complaint alone. It"

any importance were to be attached to the dictum above
4S
SUPREME CouTT OF COLORADO.

quoted respecting an alias summons, that There is no neces

sity for one, it must be taken to apply only to a case where
the writ is sufficient in the first instance, and where it is capa
ble of performing the office for which it was issued. Indeed,
in the very case from which we quote the above, it became
necessary to issue a new summons, for the reason that the first
one was lost by the officer before it was served. Where the
writ is fatally defective, or has been issued without authority,
or for any other reason it is incapable of effectuating its pur
pose, and for such reason is quashed, or otherwise fails in
performing its office, it is manifest that another writ is neces
|
sary. If then, under our Code, this contingency should happen

after the expiration of thirty days from the issuance of the
| summons, it would be a most impotent conclusion to hold that

: there was not inherent power in the court, in the absence of
statutory provision, to award an alias or new writ. And in

the case of Dupuy v. Shear, supra, the court further on, per
SAwYER, J., say: If the court had any authority to direct a
second summons to issue, it must be because by filing the com
plaint and issuing a summons thereon, a suit had been com

menced within the meaning of the provisions of the Practice
Act, and there was thenceforth a suit pending and within the
control of the court, which the court, by virtue of its general
powers over the subject-matter was authorized to dispose of,

and as incident to this power it was authorized to direct pro
cess to issue for the purpose of acquiring jurisdiction of the
yerson. * * * Conceding this authority to exist, the exercise
of the power rests in the sound legal discretion of the court.
This conclusion is undoubtedly sound. In the case before
us, the first summons was quashed because of its being fatally
defective in form, in that it did not contain a statement of the
cause of action, as required by statute, and thereupon a new

writ was awarded by order of the court, as appears by the
record. This proceeding was regular and proper.
The second ground of error is the overruling of the motion
to quash the second summons. The objection to the second

writ was substantially the same as to the first.
APRIL TERM, 1879.
49
That portion of the writ purporting to state the cause and

general nature of the action, as required by Sec. 31 of the
Code, is as follows: The said action is brought to recover
of the defendants herein named the sum of seven hundred
twenty-six and #, dollars, evidenced by a promissory note dated

December 1, 1873, which is more fully set forth in the plain
tiff's complaint, filed in this court in this action, duly verified,
together with interest and the costs of this suit. While we

cannot pronounce this a model, either in form or substance, of
the notice required, yet under the liberal intendments of our *
Code practice, it may be regarded as a sufficient compliance
with the statute; at least, the objection is not so serious as to *
warrant a reversal of the judgment upon that ground alone.
The error assigned as to the defective return of the sheriff is

cured by the supplemental record showing the amended return.
Another point made by plaintiffs in error is, that the judg

ment was rendered in vacation.
A default was first taken for failure to answer, and final
judgment rendered thereupon, in accordance with the provis

ions of sections 144 and 150 of the Code, and under the
authority thereby conferred, there was no error in the rendition

and entry of the judgment. Ganebin v. Phelan, impleaded,
dc. (decided by this court, the present term). The objection
that plaintiff below did not comply with the requirement of
section 572 of the General Laws, in respect to the jurisdictional
averment in his complaint, seems to be without foundation in
fact, since the record shows that the first paragraph of the com
plaint sets out a promissory note for the sum of $336 , to

recover which, with interest, the suit is brought; and the
fourth paragraph is a special averment that the judgment de

manded by the plaintiffs in the action does not exceed the sum
of two thousand dollars.
The judgment of the county court will be affirmed.

Affirmed.
4
50
SUPREME Cocar or Conomno.

Morgan v. Hedges.
1\IoaG.\.N v. H1-mans.
Tins case will be found reported in volume four, Colorado
Reports, at page 526.
The following dissenting opinion of
S'row:, Justice, was inadvertently omitted by the reporter, in

the preparation of that volume.
STONE, J.
I cannot agree with the majority of the court, in
their conclusion, that the facts in this case warrant the affirm
ance of the judgment. The written contract between the par

ties bears internal evidence of having been drawn up without
the aid of a lawyer, and, as is generally the result in such cases.
is a rather blind and uncertain instrument, calculated to give
rise to dispute and consequent litigation.
From the contract, however, such as it is, it is manifest that
the plaintiff and defendant were tenants in common of the

crops in controversy, although it was not the crops themselves,
but the net proceeds after sale thereof, that were. to be shared
between them.
It is agreed that under the contract Morgan was entitled to

the possession of the crops when matured, for the purpose of
selling them, and that unless the right of possession was di
vested by some subsequent change of the contract, he was en
titled to judgment for such possession under the writ. In
order to change the terms of a written contract, by a subse
quent verbal agreement, the latter should be unmistakable in its
character, and wholly consistent with the intent of the parties,
as manifested by the interpretation which they themselves put

upon it by their acts in carrying it out.
In my opinion neither of these conditions can be said to
appear from the evidence.
No evidence was submitted on
behalf of the defendant, so there is no dispute as to the facts

in the case. The exact time when Morgan left the place is not
stated, but since it was after the grasshoppers had ravaged the
crops during the season, we may infer that it was towards
APRIL TERM, 1879.
51
Morgan v. Hedges.
the end of the growing season. There could have been little,
if anything, left for Morgan to do under the contract, until
the crop was ready to sell. Be this as it may, Hedges assented
to Morgans leaving. If then by reason of his going away, he
failed to perform any part of the contract, which by its terms
he was bound to perform, it was waived by Hedges in assent
ing to such modification of the contract. There was no express
relinquishment of Morgan's right of possession. Was it im
plied, and if so from what? Examine that portion of Morgan's
testimony quoted in the opinion of my brethren, as the prem
ises from which they hold that the jury might deduce the im
plication that Morgan abandoned his right of possession.
During the season the grasshoppers destroyed nearly all we
had at that time; the prospect was gloomy; there was some hay,
corn and onions left; I then told defendant I would go to Ro
sita, and that he should do what he could with what hay and
corn was left, so that I should get out of them what money I
had advanced.
He said that he would do the best that he could,
and that I should have the money back that I had advanced
out of what should be left; that he had now a house to live in,
and would have no rent to pay, and that he could haul wood
to town to support himself through the winter. I then went
to Rosita.
There is no direction here to Hedges, either express or im

plied, to sell the crop. He was asked to do what he could with
the crops that were left, so that Morgan should get his money
out of them. What did this mean? Obviously, that
Hedges, who under the contract was to do the work of culti
vation, should go on with such work, care, cultivation
and harvesting of the crops, so that Morgan himself could
get his money out of them. Now let us see what interpreta
tion the parties themselves put upon this modification of the

agreement. Morgan further testifies: When the corn and
hay were ready
for market, I sent Mr. Platt as my agent to
go and sell the crops, as I considered this a part of my duty

under the contract.
Mr. Platt sent four loads of corn, with
52

Morgan v. Hedges.
defendants consent, to Rosita to me, which weighed all together

7,750 pounds, in the ear, and was worth two cents per pound.
Defendant brought up two of those loads himself. And upon
the same point Platt testifies:
When the crop was ripe, he
(Morgan) gave me authority as his agent to take control of the

property described in the writ in this suit, and sell the same.
Acting under his authority, I took control of the property, and
the defendant made no objection at that time. I sent four loads
of corn to Rosita to the plaintiff, with defendants consent, and
defendant took two of them up himself.

It cannot be denied that up to this time both parties acted
upon the terms of the original contract relating to Morgans
right of possession and sale of the crops. If Morgan had in
tended such abandonment, why did he assume to take posses
sion at all? And if Hedges understood that such was the in
tention, why did he not object when Morgan rst asserted his
right of possession? Why did Hedges assent to this right,
deliver a part of the goods without protest or reserve, and act
ually aid in transporting them to Morgan? These acts of both
parties are utterly inconsistent with the conclusion that Mor
gan had relinquished his right of possession under the con
tract, or that Hedges ever so understood it. I do not merely
claim that the most reasonable implication that the jury might
have drawn from the evidence in the case is that Morgan's
right of possession to the property was never divested. 1 take
the ground that upon the written contract and the subsequent
declarations and acts of the parties, no other implication can
arise, and any other conclusion is shut out; that the verdict is
unwarranted and unsupported by any evidence whatever, or
reasonable inference.
That Morgan would rent a farm at his
own cost, advance $675 in the purchase of implements and
seed, and for the support of Hedges and his family during the
whole summer, agree that Hedges should not be liable for any
losses, work himself the most of the summer, and then with
out consideration abandon his right of possession of the entire
crop, and his chance of ever getting a dollar, is to my mind
APRIL TERM, 1879.
53
Morgan v. Hedges.
most absurd. And to conclude that he did so intend, in the

face of a written contract, unaltered by express words, and up
held by the acts of both parties, seems to me equally unrea
sonable. One other scrap of the evidence I cannot refrain
from throwing into the scales of justice: Platt testifies: De
fendant told me that he had hauled away four loads of hay off
the place, but I inquired, and found out that he had hauled
away eight loads. The loads weighed about one ton each, and
was worth about $13 or $14 per ton. The defendant made
no attempt to contradict this evidence, and therefore stands as
having added dishonesty and falsehood to wrong. A question
arising upon the pleadings in this case, which was presented
in the arguments of counsel, I deem of sufficient importance
to notice.
To the declaration in replevin that the defendant wrongfully

detained the property in controversy, the defendant pleaded
non detinet and property in himself. Issue was joined upon
these pleas, trial had, and verdict for the defendant; motion for
new trial overruled, and judgment of retorno habendo awarded,
from which plaintiff appeals to this court.
Instead of non detinet, the plea should properly have been
non detinuit. The plea of non detinet was proper only when
formerly the action was to recover the value of the goods, and
damages where the goods were still retained by the defendant.
This form of the action is now obsolete, the property being
taken by the officer upon suing out the writ, and delivered to
the plaintiff who sues for possession of the same. The declar
ation in such case (where a wrongful detention is the gist of
the action), is that the defendant wrongfully detained the goods,
until, &c., that is, until they were replevied. Hence, to be
responsive to such allegation, the plea should be that the de

fendant did not detain the goods, &c. 1 Chitty's Pl. Tit.
Replevin.
Since the plaintiff joined issue upon this plea, the most that
can be said of it is, that it raised an immaterial issue; but this
cannot be considered important while the plea of property in
54

Lutterell et al. v. Swisher.
defendant was also pleaded. As to this latter plea, is is con

tended that thereunder the burden of proof was upon the de
fendant.
We think this is not the rule.
It seems well settled
that this plea, where the plaintiffs right of possession is trav

ersed therein, is mere inducement to the traverse of the right
of property in the plaintiff. In the case before us, the record
shows the plea of property in defendant to be in the usual and
correct form at common law, and is in effect a special or formal

traverse, averring, by way of inducement, property in defend
ant, and traversing, under the absque hoc, the plaintiffs alle
gation of ownership in the property. The question raised by
such plea, is not whether the property is in the defendant, but
whether the right of property, and the right to immediate

possession at the time when, &c., was in the plaintiff; and the
onus is therefore upon him to show such right of possession.
Reynolds v. McCormick. 62 Ill. 415.
LUTTERELL ET AL. V. SwishER.

An appeal under section 338 of the code lies only from final judgments, and
no authority is found there for taking an appeal from either an order deny
ing a continuance, or from an order setting aside a verdict.
*.
Appeal from District Court of Park County.

MoTION to dismiss appeal.
PER CURLAM. The appeal is taken from an order denying a
continuance from an order setting aside the verdict, and from
the judgment. There is no final judgment rendered in the

cause; hence it cannot be pretended that an appeal will lie
under the first division of Sec. 338 of the Code, which relates
exclusively to final judgments. The only intermediate orders
OCTOBER TERM, 1879.
50
St/sin v. Stein.
from which an appeal will lie are specied in the third divis
ion of said section. But there is no authority found there for

taking an appeal from either an order denying a continuance
or from an order setting aside a. verdict. Both these interme
diatc orders are non-appealable, and may only be reviewed

when the appeal is taken from the nal judgment; but in the
absence of a nal judgment, and in the absence of an appeal
able order, the motion to dismiss the appeal must be allowed.
Appeal disrnissecl.
STEIN v. STEIN.
1. Desertion consists in the actual ceasing of cohabitation, and the intent
in the mind of the offending party to desert the other.
2. Matrimonial cohabitation must comprehend a living together as hus
band and wife, embracing relative duties as such.

Ac'r1oN for divorce.
It appears fromlthe record that the
appellant was a practicing physician. That his income was

between two thousand and three thousand dollars per annum.
The court below, in its decree, found that the appellant at the
time was possessed of moneys, goods and chattels and real
estate, to the value of thirty-six hundred dollars. That the
appellee had had the care and support of the two children (aged
respectively eight and fteen years), continuously from March,
1876, to September, 1878, and thereupon allowed alimony
in the sum of fourteen hundred dollars, as follows:
Two
hundred dollars within thirty days, four hundred dollars

within four months, four hundred dollars within eight months,
and four hundred dollars within one year; also that the
defendant pay two hundred dollars to the plainti"s solictor,
58
SUPREME Couar or Cononsno.

.
Stein v. Stein.
before October 1st. 1878, and that plaintiff have the care and
custody of the children. Other facts are stated in the opinion.
Messrs. MARKHAM & THOMAS, for appellant.

Mr. Enos MILES, for appellee.
Sronn, J.
It is contended by appellant that the suit for
divorce was prematurely brought. The bill alleges desertion,

continued for more than one year prior to bringing suit, as
ground for the divorce sought. It is admitted that appellant
quit the dwelling house for good, and ceased sleeping there
about the 3rd of May, 1876, and that the bill for divorce was
led April 7th, 1877. On the other hand, it is established
by the testimony, that in the month of March, 1876, appellant,
among other acts complained of, ceased to occupy the bed
room of his wife, and from that time to the date of his nal
leaving the house in May, whenever he remained at the house

over night, he slept on a lounge in the kitchen, and had no
matrimonial intercourse, companionship or communication
with his wife, whatever.
Mr. Bishop, in his work on Marriage and Divorce, denes

desertion to consist in, rst. The actual ceasing of cohabita
tion; and seco-mlly, The intent in the mind of the offending
party to desert the other. 1 Bishop on Marriage and Divorce,
5th Ed. Sec. 777.
( It is isisted by counsel for appellant that upon this accepted

denition, there was no cessation of cohabitation until
defendant ceased to sleep in the same house with complainant;

that therefore the desertion did not begin until May, 1876, and
hence had not continued a whole year prior to the ling of
complainants bill. This is the chief question for us to deter

mine. We think the construction claimed for the term
cohabitation entirely too narrow. Matrimonial cohabita
tion must certainly comprehend a living together as /ms?/and
and wfe, embracing relative duties as such.
Otherwise, all
Coronas TERM, 1879.
57
Stein v. Stein.
the married couples residing in a hotel, boarding or lodging

house, might be said to be cohabiting promiscuously.
In connection with the text which we have quoted from, su

pra, Mr. Bishop, the learned author adds: But it is wholly
immaterial whether the distance to which the parties remove
apart is great or small, except, perhaps as illustrating, under
some circumstances, in matter of evidence, their intent; for
the criterion in all cases is the intent to abandon.
The intent of the defendant to desert his wife in this case is
fully shown by his conduct both before and after ceasing to

sleep upon the premises of the domicile, and we can conceive
that it would not have altered the case had he for those few
weeks slept in the barn, or at his oice, where he did sleep after
leaving the kitchen lounge.
In lllagrath v. Magratk, 103 Mass. 579, it is said that

" There is no more important right of the wife than that which
secures to her in the marriage relation the companionship of
her husband and the protection of his home. His willful denial
of this right, with the intentional and permanent abandonment
of all matrimonial intercourse, against her consent, is desertion
within the meaning of the statute.
The desertion commenced when, as the evidence shows, the
defendant husband intentionally laid aside and refused longer

to perform all the chief duties and obligations on _l_1i_s part,
which are imposed by the marriage contract, and distinguish
it from all others. lllagrath v. llfagrath, supra. Nor do we
think, in view of all the evideilbe, that the amount of alimony
allowed by the court was excessive.
The decree of the court below seems to be sustained by the

testimony in the case, and will be airmed accordingly.
Decree airmed.
58

McGan et al. v. O'Neil.
MCGAN ET AL. V. O'NEIL.

1. The verdict of a jury as to issues of fact framed by the court in a suit
in equity, has not the dignity of a like verdict in an action at law. It is ad
visory only. It is the duty of the court in such case to sift the entire evi
dence, and to found its decree thereon, as may be warranted by all the facts
elicited.
2. Under the old system of practice a final decree could not be entered in
vacation.
Error to County Court in Boulder County.

CREDITORs bill. The case is sufficiently stated in the opinion.
Messrs. ORRIs BLAKE, R. H. WHITELEY and GRAN VILLE
BERKLEY, for plaintiffs in error.
Mr. W. A. HARDENBRook, for defendant in error.

THATCHER, C. J. The bill in this case filed by O'Neil, seeks
inter alia, to set aside certain conveyances and bills of sale, on
the ground that they were executed with intent to hinder, delay
and defraud the complainant. Upon motion of the defendants
below, certain issues of fact were framed by the court to be
tried by a jury.
Both parties having failed themselves to agree as to what of
the issues raised by the pleadings should be submitted to the
jury, were content with the issues as framed by the court for
trial. A general objection was made to certain of the instruc
tions given and refused. As the objection was not specific, in
obedience to the uniform practice of this court, it will not be
considered. Besides a very different consideration governs in
a chancery cause from that which controls in an action at law.
The verdict of a jury as to the issues of fact framed in this
case by the court, has not the dignity of a like verdict in a law
action. It is advisory only. Indeed, the court was not bound
to submit any of the issues to the jury. In Abbott v. Monti,
Ocromza TERM, 1879.
59
McGa.n et al. v. O'Neil.
3 Col. 562, this court uses the following: Whether the chan
YIWLWHWY
cellor shall direct or refuse an issue, rests wholly in his discre

tion.
If an issue be directed, the verdict of the
jury thereon is not binding upon the cl1aucellors conscience.

He is not only at liberty to disregard it, but it is his duty to
decide the cause according to the dictates of his own judg
ment, and the convictions of his own conscience.
-nil
UMMOFMEL
Garrett v.
Stephenson, 3 Gihn. 278. In an action at law the verdict of

the jury is of higher and more solemn import. It is the foun
dation upon which the judgment of the court must rest. In
a suit in equity the verdict is not necessarily the foundation of
the decree. It is merely incidental, and may be, and if the
chancellors conscience is not satised with it, must be wholly
nnheeded. No error can be assigned upon the order of the
court, either granting or refusing an issue. The trial by jury
in such case is not matter of right.
The record, which is very imperfect, seems to show that at
the nal hearing the court examined at least two witnesses

that did not testify before the jury, and the decree is presum
ably based both upon the evidence submitted to the jury as well
as upon the evidence subsequently taken. Upon motion ofcom
plainant below it was ordered by the court that the testimony
taken in the cause on the trial of the special issues therein be
fore the ury, should be taken down by the sworn reporter, and
that the same should be read before the court on the nal
hearing, with the same effect as though it had been taken be

fore a master on the usual order of reference. In pursuance
of this order, the testimony was taken down and preserved.
With the view of arriving at the truth, it is the duty of the

court to sift the entire evidence adduced, both at the trial of
the special issues and at the nal hearing, and to found its
decree thereon, as may be warranted by all the facts elicited.
In so confused a state is the record that it is diicult
to say that it presents all the evidence taken.
The decree in some of its essentials was not settled and
signed during the term. The terms of sale, the length of
60

A., T. & S. F. R. R. Co. v. The People.
notice to be given before the sale, the appointment of the

receiver who was authorized by the decree in the making of
the sale, and conveying the property to perform the ordinary
duties of a master; these and other substantial provisions of
the decree were settled in vacation.
The decree is in substance to be treated as a final decree
rendered in vacation, and therefore cannot stand. Francis v.

Wells, 4 Col. 274, and cases there cited.
The decree will be reversed without prejudice to the testi
mony already taken, and the plaintiff in error will recover
costs in this court.
I'eversed.
THE ATCHISON, ToPEKA AND SANTA FE R. R. Co. v.

THE PEOPLE Ex REL. ATT'Y-GENERAL.
1. It is a general rule that when the statute provides a remedy to test the
right to exercise a franchise or office, it is exclusive of all other remedies.
2. An action for the usurpation of an office or franchise is a civil action
under the Code of this State, and must be governed by the rules applicable
thereto; must be instituted by filing a complaint and issuing a summons, and
proceeded with the same as any other action.

3.
Section 1103 of the General Laws limits the duties of the Attorney-gen
eral to State cases instituted or pending in the Supreme Court of the State.
His duty to appear in State cases in inferior courts, would be obligatory only
when required to do so by the Governor or General Assembly.
4. It is the duty of the district attorneys to appear in the District Courts
of their respective districts on behalf of the State. (Gen. Laws, section 895;
Code, section 260.)
5. Where, by statute, authority is given to a particular officer, its exer

cise by any other officer is forbidden by implication.
Error to District Court of El Paso County.

Mr. G. B. REED, Mr. WILLARD TELLER, and Mr. Charles E.
GAST, for plaintiffs in error.
-
OCTOBER TERM, 1879.
61
Attorney-general, CHARLEs W. Wright, for defendants in

error.
ELBERT, J. This is a proceeding by information in the na

ture of a quo warranto upon the relation of the Attorney-gen
eral in behalf of the State against the Atchison, Topeka &
Santa Fe railroad, for the alleged usurpation of a corporate

franchise.
Some of the questions made are disposed of by the decision

in the case of the Central d: Georgetown Road Company v.
The People, decided at the April term. It was there held (1),
that whatever the form of the action prescribed by the General

Assembly to remedy the usurpation or misuse of a corporate
franchise or public office, whether by information in the nature
of a quo warranto, or by the ancient writ of quo warranto, or
by a complaint under the Code in a civil action, the objects to
be obtained are identical, and the proceeding is in substance
civil, instituted for the determination of purely civil rights;
(2), that chapter 25 of the Code, concerning actions for the
usurpation of an office or franchise, is free from any constitu
tional objections arising from section 20, article 5, of the con
stitution; (3), that under the Code the proceeding to remedy
the usurpation or misuse of a franchise, is by civil complaint
and summons.
It is insisted, however, that notwithstanding the provisions

of chapter 25 concerning actions for the usurpation of an of
fice or franchise, the proceeding by information, in the nature
of quo warranto, still remains, and may be pursued, as at
common law.
That this position is without foundation, we think clear.

A leading term of all Code reform, is the abolition of common
law forms of actions, and the establishment of a single, simple
and universal remedial procedure called a civil action, by
which rights shall be maintained and duties enforced. The
Code commences with the declaration that the distinctions
between actions at law and suits in equity, and the distinct
62
Supanua Courrr or COLORADO.

~A., T. & S. F. R. R. Co. v. The People.
forms of actions and suits heretofore existing are abolished,

and there shall be in this State but one form of civil action for
the enforcement or protection of private rights, and the redress
or prevention of private wrongs, which shall be the same at
law and in equity, and which shall be denominated a civil

action, and which shall be prosecuted and defended as pre
scribed in this act.
Section 48 declares that the mode of pleadings in civil
actions and the rules by which the sutliciency of the pleadings
shall be determined shall be as prescribed in this act and not
otherwise.
'
These provisions leave no doubt of the mandatory character

of the procedure prescribed by the Code in lieu of the ordinary
common law forms of actions, such as assumpsit, debt, cove
nant, ejectment, etc., etc.

The Legislature having, in chapter 25 of the Code, provided
for actions for the usurpation of an oice or franchise, and
having repealed _by the same act, chapter 73 of the revised
statutes, authorizing proceedings by information in the nature
of qua war-ranto, a clear intent is manifested not to give a
cumulative remedy, but to replace the common law proceeding
by that prescribed by the Code.
The repeal implies a nega
tion.
It is a general rule that where a statute provides the remedy
to test the right to exercise a franchise or otce, it is exclusive
of all other remedies. 2 Potter on Corp. Sec. 665; Palmer v.
Foleg/, 36, Superior Court Rep. (N. Y.) 14. An action for the
usurpation of an ofce or franchise, therefore, is a civil action
under the Code of this State, and must be governed by the
rules applicable thereto; must be instituted by ling a com
plaint and issuing a summons, and proceeded with the same as
any other civil action.

When common law forms contain the allegation necessary to
support any particular cause of action, they may be used, pro
vided they comply with the provisions of the Code, and state
,the facts constituting the cause of action in ordinary and con
Ocronua TERM, 1879.
63
cise language. The information in this case is in the form

heretofore usually adopted when the proceeding was by info:-~
ination in the nature of qua warranto, and is but the statement
of legal conclusions according to an ancient form.
Of such an
information in the ease of The Central and Georgetown Road

Company v. T/te People, cited supra, the court says : Doubt
iess the mere statement ofylegal conclusions, with the demand
that defendant show by what authority it exercises a franchise

such as was anciently tolerated, when the proceeding was by
information in the nature of qua urarranto, would not be sui
cient under the Code. The writ is also the ancient citation, to
show by what authority, etc., and can in no wise be regarded
as the equivalent of the summons required by the Code.
It
does not state the county in which the complaint is led, or

that it is led at all; nor does it suiciently state the cause and
general nature of the action, as is contemplated by the Code.
These objections were taken by the motion to quash the writ,

and should have been sustained. '
Another objection taken by the motion to quash, was that
the Attorney-general of the State had no power to institute
the proceeding.
The duties of the Attorney-general are prescribed by the
General Statutes, sections 1,103 to 1,108 inclusive.
Section
1,103 provides: The Attorney-general shall attend in per

son at the seat of government during the session of the Gen
eral Assembly and the Supreme Court, and shall appear for
the State, prosecute and defend all actions and proceedings,

civil and criminal, in which the State shall be a party or inter
ested, when reqnired to do so by the Governor or General As
sembly, and shall prosecute and defend for the State all causes
in the Supreme Court in which the State is a party or inter

ested.
This section limits the duties of the Attorney-general to

State cases instituted or pending in the Supreme Court of the
State, unless it can be said the second clause of the section is
intended to include State cases pending in inferior courts.
(id

But if this construction be given it, the duty of the Attor

ney-general to appear in State cases pending in inferior courts
would still be obligatory, only when required to do so by the
Governor or General Assembly. There is no claim that the
Attorney-general in this case instituted the proceedings by
request, either of the Governor or General Assembly. In our
view the proceeding should have been instituted, if at all, by
the district attorney of the particular district at his own in

stance, or upon the complaint of any private party.
With
this view, both the provisions of the general laws and the Code
harmonize.
Article 6, section 21, of the Constitution, says:
' There shall be elected, by the qualied electors of each judi

cial district, at each regular election for judges of the Supreme
Court, a district attorney for each district, whose term of oice
shall be three years, and whose duties and compensation shall
be as provided by law.
Section 895 (page 347, General Laws) is as follows: Every
district attorney shall appear in behalf of the State and the

several counties of his district in all indictments, suits and
proceedings which may be pending in the district court, in

any county within his district, wherein the State or the people
thereof, or any county of his said district, may be a party,

etc.
The provisions of chapter 25 of the Code, section 260, is as

follows: An action may be brought by the district attorney
in the name of the people of this State, upon his own informa
tion, or upon the relation and complaint of a private party
against any person who usurps, intrudes into, or unlawfully
holds or exercises any public oice, civil or military, or any
franchise within his district in the State, and it shall be the
duty of the district attorney to bring the action whenever he
has reason to believe that any such otlice or franchise has been
usurped, intruded into, or unlawfully held or exercised by any
person, or when he is directed to do so by the Governor, and
in case such district attorney shall neglect or refuse to bring
such action upon the complaint of a private party, such action
65
Town of Trinidad v. Simpson.
may be brought by such private party upon his own relation

in the name of The People of the State.
Where, by statute, authority is given to a particular officer,
its exercise by any other officer is forbidden by implication.
Potter's Dwarris on Stat. 72,270. State v. Hastings, 10 Wis.
525; Conroe v. Bull, 7 Wis. 354.
The third objection made by the motion to quash the writ

and dismiss the information was therefore well taken, and the
court erred in overruling it. We do not consider it necessary

to consider other questions raised by the record.
The judgment of the court below is reversed, and the cause
remanded, with directions that the proceedings be dismissed.
I'eversed.
THE TOWN OF TRINIDAD V. SIMPSON.

Inability upon the part of persons called to serve as jurors, to speak the
English language, and to understand it when spoken, does not necessarily

disqualify them from serving as jurors, under the statutes of Colorado.
Error to District Court of Las Animas County.

Mr. JoHN C. FITNAM, for plaintiff in error.
Mr. J. O. PACKER, for defendant in error.
ELBERT, J. On the trial below Juan B. Cordoba, Manuel
Abeyta and Casimero Romero were summoned, with others, as

jurors. Upon his voir dire each answered that he did not un
derstand the English language.
The plaintiff in error made this the ground of a challenge

for cause; the challenge was overruled by the court, and the
5
CT ,-\ we

persons named were empaneled and sworn, and served as

jurors upon the trial.
Other errors are assigned, but by stipulation of counsel the
cause is submitted upon this assignment alone.
Is inability on the part of persons called as jurors, to speak

the English language, and to understand it when spoken, ne
cessarily a disqualifying fact? The question is not without
diiculty.
The statute declares that all male inhabitants of the State
of the age of twenty-one years who are citizens of the United
States, or have declared their intention to become such citizens,
and who have not been convicted of felony, shall be competent
to serve as grand and petit jurors in all courts and judicial
proceedings in this State.
These are the general statutory qualications of a juror.
One possessing them, however, is still subject to challenge.
Section 161 of the Code provides that either party may chal
lenge peremptorily, or for cause, limiting peremptory challenges
to four. Section 162 enumerates seven several grounds upon
which challenges for cause may be taken. It is unnecessary
to advert to them further than to say that inability to speak or
understand the English language is not enumerated as a ground
of challenge.
This is not a case, however, where enumeration is to be
taken as excluding disqualifying causes not enumerated, other
wise deafness, insanity, and like physical and mental disquali

cations, absolute in their character, would be unchallengable.
The maxim, expreasio eznius est ewclusio alteriua is not of

universal application in the construction of statutes. The
legislative intention is to be taken according to the necessity
of the matter, and according to that which is consonant to
reason and sound discretion. Brooms Leg. Max. 664.*

In the silence of the statute, therefore, the ground of chal
lenge in this case stands as at common law, to be determined
by a consideration of the duties imposed upon a uror, and the
qualications thereunto requisite.
67
Challenges to the poll are reduced by Sir Edward Coke un
der four different heads; propter /tonoria respectum; propter

defectum; propte-r afectum, and propter delictum.
3 Black.
Com., *361, *362.

If to either, the challenge in the present case must be re
ferred to the second head. It is a defect of education, but
only in a relative and limited sense. Knowledge of alanguage

other than a persons vernacular is but an accomplishment.
llant of it argues nothing respecting mental culture; in fact,
may co-exist with the highest intellectual attainments and the
greatest aptitude for the duties of a juror. While this is the
case, the inability of a uror ignorant of the language in which
the proceedings of the court are had, to discharge the duties

of a juror unaided, is patent. It is his duty to listen to the
evidence of the witnesses, the arguments of counsel, and the
instructions of the court. Ignorance of the language, as a
matter of fact, is as conspicuously a disqualifying circumstance
as though he were deaf, unless the court may aid him in the
discharge of his duties through the instrumentality of an in
terpreter.
Hence, the question comes to this: May the court, in such

a case, interpose an interpreter t If it has the power, the dis
qualication is removable; if not, it is complete and absolute.

It is true there is no express authority of statute to do so,
but there is a general power conferred by Sec. 402 of the Code
upon district courts to make rules and regulations governing
their practice and procedure, in reference to all matters not
expressly provided for by law. Independently of statute,
courts of original jurisdiction have inherent power to make
and enforce rules for the transaction of their business, subject
only to the condition that they do not contravene the law of

the land. Gannon et al. v. Fritz, 79 Pa. 303.
It must be borne in mind that the territory embraced in

quite a number of the counties in the southern part of the
State, and among them the county in which this litigation
originated, formerly belonged to the Republic of Mexico; that
68
SUPREME Comm or COLORADO.

it was acquired by treaty by the United States, and that the
inhabitants thereof were largely, if not exclusively, a Spanish

speaking people. Of this fact we take judicial notice. These
people are in all respects citizens, and the association of alien
age and its disabilities with ignorance of our language is to be
dismissed.
Under like circumstances it was provided by stat
ute in the State of California, that a juror should have sui
cient knowledge of the language in which the proceedings of

the court were had; but certain counties where a large portion
of the population were ignorant of the English language were
excepted by the statute from the operation of the rule.
It is
a noticeable fact that both under our Territorial and State
governments, legislation touching the administration of the

law, has proceeded without any express reference to, or recog
nition of the fact that in the counties mentioned, its adminis
tration would chiey concern, as for its agencies it would be
largely dependent upon, a Mexican citizenship. In the early
history of the territory it would have been perhaps impossible
in these counties to obtain an English speaking jury. Even

now the exclusive rule that is contended for, if it did not de
feat the administration of the law in these counties, would de

volve the burthens of jury duty upon a very limited number.
We cannot conceive that legislators have been blind to these
facts or negligent of their demands. In the absence of express
legislation, we presume them to have regarded the difficulty as
amply provided for, either in the provisions of Sec. 402, cited
supm, or in the inherent powers of the courts of original ju
risdiction which they had established for the administration
of the law.
For these reasons we think it was fully within the power of
the court to appoint an interpreter, under the sanction of an

oath, to interpret the testimony of witnesses and the arguments
of counsel. This would effect the discharge of their duties
as jurors while in the jury box. Further than this we do not
decide.
It does not appear that any interpreter was appointed, but
DI-ICEMBER Tenn, 1879.
69
it is to be presumed that the court did whatever was necessary

in this behalf.
As to the discharge of their duties in the ury room, the du

ties of consultation, discussion and agreement, it does not ap
pear but what the other jurors of the panel were Mexicans,
and spoke the Spanish as well as the English language; if so,

no interpreter was necessary after their retirement from the
jury box.
\Ve are told that we must presume that they were English
speaking only.
Respecting the jurors in a county where the
English speaking class is so limited, and the Spanish speaking

class 1's so largely in excess, such a presumption would be
without foundation in fact, and inadmissible.
Without this
presumption it does not airmatively appear that the jurors

named were disqualied for the duties of the jury room. We
desire to say, however, that the power of the court to interpose
an interpreter in the jury room is embarrassed by considera

tions not attaching to_the appointment of an interpreter to act
in the presence of the court, and if it exist, its exercise should
be limited to cases of strictest necessity.
Much stress is laid upon the proposition that all judicial
proceedings must be in the English language, and the case of

Danton v. Montoya, 1 Col. 99, is cited as authority.
In that
case the narr was in the Spanish language, and the doctrine
of the case must be limited to the declaration that all plead

ings must be in English. The fallacy of the argument on this
proposition consists in treating a general rule as though it
were an exclusive rule. The declaration of the Code (Sec. 405)
is, that Every written proceeding in a court ofjustice in this

State or before a judicial ofcer, shall be in the English lan
guage. * * * * This is substantially the statute of IV,
Geo. II, C. 26, which enacted That both the pleadings and
the record should thenceforward be framed in English.
Stephens Plead. Appendix 24. Prior to that time the record
and pleadings (after the introduction of written pleadings)

had been framed in Latin, and the statute had for its object the
70
SUPREME Cour-.1" or COLORADO.

abolition of that practice. By statute XXXVI, Edward III,

it was enacted that For the future all pleas should be pleaded,
shown, defended, answered, debated and judged in the English
tongue, but be entered and enrolled in Latin. 3 Black. Com.
'3l8. The arms of Edward had prevailed over those of France,
and the object of the statute was to banish from English courts
of justice the use of the Norman or low French introduced
after the Conquest. This appears to be the only statute on the
subject prior to the fourth year of James I. How far and with
what modications it may be said to prevail as part of our

commou law, need notbe discussed.
Undoubtedly laws are to
be administered in the language of the people adopting them.

The people of this State, as of the United States, are an Eng
lish speaking people, and in the silence of the statute all judi
cial proceedings would be, as of course, in that language. It
does not follow, however, that they would be exclusively so.
This proposition must be taken subject to the practical neces
sities
that daily arise in the administration
of
justice.
l of the law in courts
Contracts in a foreign tongue are to be dealt with, and must
be translated. Non-English speaking witnesses are put upon
the stand and must bear witness through an interpreter.
Non-English speaking prisoners are put upon their trial, and
the indictment and other proceedings of the trial are made

known and manifest to them by the same instrumentality.
The proposition, therefore, that all judicial proceedings must
be in the English language must he taken sub modo.
In this view, the difficulty made respecting the instructions

of the court also disappears. While under the Code they must
be in writing, and under Sec. 405, in English, we do not con
ceive that their translation into Spanish for the use and in
struction of a juror understanding that language alone, would
be inhibited by the spirit of the section. The object of the

provision is to secure a record in English, and this would in
nowise be defeated.
The hypothetical case put by counsel, of a jury composed of
71
Boughner v. Meyer.
persons of several different nationalities, is met by the sugges

tion that extremes prove nothing. Such complications are not
likely to arise, where ample judicial discretion exists.
We are not unmindful that there are many serious objec
tions to the interposition of interpreters in judicial proceedings;
and while we hold it within the power of the court to appoint
an interpreter under the circumstances of this case, it was also
within its discretion to exclude the jurors named for the cause
assigned. People v. Arceo, 32 Cal. 40; Atlas M. Co. v. John

son, 23 Mich. 37; State v. Marshall, 8 Ala. (N.S.) 302.
Such persons are not disqualified, but whenever it is practi
cable to secure a full panel of English speaking jurors, a wise
discretion would excuse from jury duty persons ignorant of
that language. The cases of Fisher v. Philadelphia, 4 Brews
ter, 375; and Lyles v. The State, 41 Texas, 172, are cited
against the conclusion arrived at in this opinion. The first

authority we have been unable to obtain. With the reasoning
of the last we are not satisfied.
If our conclusion as to the
power of the court to appoint an interpreter be correct, the

foundations upon which the conclusions in that case appears
to rest, disappears. The judgment of the court below is af

firmed with costs.
Affirmed.
BoUGHNER V. MEYER.
& J C R 34
1. A wager as to whether an execution can be collected, cannot be consid
ered as a wager upon any game within the meaning of the statute.
But as
between the original parties to such a transaction, a check given in payment

is void, as being in contravention of sound policy.
2. Such a check, however, in the hands of a bona fide holder, for value
received in due course of trade, must be protected.
3. It is not sufficient to aver, in pleading, that the assignee is not a bona

fide holder, in an action by the assignee against the drawer; the defendant
72
Boughner v. Meyer.
must aver that the plaintiff had notice of the original transaction, and the
burden of proof of bad faith rests with him who assails the title on that
ground.

Messrs. THOMAs GEORGE and P. W. FAUNTLEROY, for appel
lant.
Mr. E. P. JAcobson, for appellee.
THATCHER, C. J. The appellant (plaintiff below) by his

complaint, alleges that on the 24th day of August, A. D. 1878,
the defendant made his check, whereby for value received, he
directed the Colorado National Bank to pay to Isador H. Kas
tor, on demand, one hundred dollars, and caused the same to
be delivered to the said Kastor on the 4th day of September,

A. D. 1878; that said check was duly assigned for value to the
plaintiff, and he is the lawful owner and holder thereof; that
the same was presented to said bank for payment, and that
payment thereof was refused.
The defendant, by his answer, sets up that he made such
check upon a wager with said Kastor whether he (the said
Kastor) would collect a certain execution against a partnership
firm known as I. Heller & Co. then in the hands of the sheriff
of Arapahoe county, and upon no other consideration what

ever.
To the sufficiency of this answer the plaintiff demurred, and

the demurrer was overruled.
By Chap. 24, Sec. 140, Genl Laws, p. 299, it is provided

that all contracts, promises, agreements, conveyances, securi
ties and notes made, given, granted, executed, drawn or en
tered into, where the whole or any part of the consideration
thereof shall be for money, property or other valuable thing,
won by any gaming, or by playing at cards, or any gambling
device or game of chance, or by betting on the side or hands
73
Bong-hner v. Meyer.
of any person gaming, or for the reimbursing, or paying any

money or property knowingly lent or advanced at the time
and place of such play, to any person or persons so gaming or
betting, shall be utterly void and of no qfect.
The provisions of this section are very broad and sweeping.
Even in the hands of bona de purchasers, negotiable paper

founded in whole or in part upon agambling or gaming
consideration, within the meaning of this section, is utterly
void.
The language employed is open to no other construction
The protection which the law extends to an innocent holder,
who for value in the usual course of trade has received nego
tiable paper, is of no avail when the statute in terms or by
unavoidable implication has pronounced the instrument abso
lutely void. Stricken with nullity at its birth, it can there
after gain no vitality. There is, however, a distinction recog
nized by the authorities between the status of negotiable paper
held by a bonafide purchaser where the original consideration
is by the courts adjudged to be illegal. and negotiable paper
held under like circumstances, when the statute declares such
paper to be void.
In Vallett v. Parker, 6 Wend. 615, the court says: When
ever the statute declares notes void, they are and must be so,
in the hands of every holder; but where they are adjudged by
the court to be so for failure, or the illegality of the consid
eration, they are void only in the hands of the original par
ties, or those who are chargeable with or have had notice of
the consideration.
To the same effect see Weed v. Bond, 21 Geo. 195; Glenn
v. The Farmers Bank of N. C. 70 N10. 191; Bailey v.

Taber, 5 Mass. 285; The City qf Aurora. v. West, 22 Ind. 88.
Is the wager in question within the prohibition of the stat
ute? Was the consideration of the check won by any gam

'in.g, within the mcaning'of the section above quoted?
If the wager was upon any game, the check is absolutely
void in_ the hands of every holder.
Horse-racing has been
74
SUPREME CouBT OF COLORADo.

Boughner v. Meyer.
decided to be gaming within the intent of the language here

used. The word gaming is held to extend to physical con
tests, whether of man or beast, when practiced for the purpose
of deciding wagers, or for the purpose of diversion, as well as
to games of hazard or skill, by means of instruments or de
vices.
Such were the Olympic and Nemean games among the

Greeks, and Apollinian and Capitoline games among the Ro
mans. Tatman v. Strader, 23 Ill. 493; Shopshire v. Glas
cock et al. 4 Mo. 536; Boynton v. Curle, 4 Mo. 599.

But a wager as to whether an execution can be collected, we
are constrained to conclude, cannot be considered as a wager
upon any game. It would, it is believed, be judicial legisla

tion to hold that money won upon such a wager is money won
by any gaming.
The act of March 2, 1864 (Sess. Laws 1864, p. 97, Sec. 3):
To suppress gambling and gambling houses, extended in
terms to all negotioble paper where the consideration was for
money won on any wager; but the Revised Statutes of 1868
contain the same provisions as the section now under examina
tion, omitting the clause relating to any wager.
Where the effect of a statute is to make void a certain class
of negotiable paper in the hands of innocent purchasers, it

certainly should not be extended to cases not fairly within its
provisions.
As between the original parties to the wager in question,
we are clearly of the opinion that the check was void. Even
at common law a wager against sound policy was not recover
able. That the wager that a certain execution will not be col
lected, is in contravention of sound policy, we entertain no
doubt. The moment such a wager is made, the one party has
-
a pecuniary interest which might influence him to interfere

with the due administration of justice, by seeking to defeat
the process of court. To hold that such a wager is valid, is to
encourage unwarranted intermeddling with the mandates of
judicial tribunals. Although void as against sound policy, as
\"| U!
Bouglmer v. Meyer.
it is not within the statutory prohibition, the check, in the

hands of a Lona de holder, for value received in due course
of trade, must be protected. By the current of decisions, and

in accordance with the recognized policy of commercial law,
negotiable paper, where the consideration arises from a wager
ing contract, will not be declared void in the hands of bona
de purchasers, unless so enacted by statute: Ilaig/it v. Joice,
2 Cal. 64. Nor is this doctrine thought to be variant from the
rule laid down in Eldred v. Malloy, 2 Col. 320.
In that case, the wagering contract was held to be void, but
whether, if the instrument had been negotiable, it would not
have been protected in the hands of a bonacle purchaser, was

not decided, the court expressly holding that the instrument
sued on was not negotiable.
Was the answer which merely set up that which would have
been a good defense between the original parties suicient?
If this wagering contract was within the prohibition of the
statute, the defendant need not to have alleged that the plain
ti' had notice of the illegal character of the transaction, which
ultimated in giving the check, for in such case, into whose
hands soever it might have passed it was equally void. But
this check originating a transaction not within the interdict
of the statute, is, in the hands of a bone de purchaser, unaf
fected by the fact that it arose out of an illegal act, and it can
be by such holder collected.
In such case the defendant must aver that the plaintiff hacw
notice of the original transaction, leaving the circumstances by
which such notice is to be proved, directly or indirectly, to be
established by evidence.
It is not enough to allege merely
that he is not a bonade holder. Ut/new v. Riche, 10 Adol. &

El. 411; Daniels on Neg. Instruments, Sec. 770. And the
burden of proving that the check was purchased in bad faith
rests upon him who assails the title on that ground.
Good
man v. Sivnonds, 20 How, 343 (U. S. S. 0.); Swfft v. T3/son,

16 Peters, 1; Redeld & Bigelows Lead. Cas. on Bills of Ex.
& Prom. Notes, p. 186 et seq. and 239 et eeg.,' Daniels on Ncg.
Instruments, Sec. 1503.
76

Bissell et al. v. Cushman.
From what we have said it follows that the demurrer to the
answer should have been sustained.
The judgment will be
reversed and the cause remanded, for further proceedings not

inconsistent with the views here expressed.
IReversed.
BISSELL ET AL. V. CUSHMAN.

Where there are several defendants all served, final judgment against one
or more cannot be entered without disposing of the case as to all.
Error to District Court of Gilpin County.
The facts are stated in the opinion.
Mr. L. C. Rockwell, for plaintiff in error.

Mr. HUGH BUTLER, for defendant in error.
THATCHER. C. J. This was an action upon a promissory

note, instituted before the Code went into effect, by the defend
ant in error against the makers of the note, Charles C. Post,

Charles H. Morgan, Guy M. Hulett and Charles R. Bissell.
Summons was duly served upon Bissell, Post and Hulett, and
returned not found as to Morgan. Bissell plead to the action.
A rule to plead was also taken against the other defendants
served, viz.: Post and Hulett. Post and Hulett failed to plead
in obedience to the rule, whereupon judgment by nil dicit
was by the court entered against Post only. 'Post, as attorney,
also entered the appearance of Morgan, against whom, without
any previous rule to plead, judgment by nil dicit was also

entered.
As to Hulett and Morgan, the record does not disclose that
any further action was taken. After the issues were made up
77
Bissell et al v. Cushman.
between Cushman, plaintiff below, and Bissell, the following

entry records the action taken : This day comes the plaintiff,
by Hugh Butler, Esq., his attorney, and the defendant, Charles
C. Post, not appearing, was three times solemnly called, but
comes not, but herein wholly makes default; and it appearing
to the court that the said plaintiff ought to recover his damages
by reason of the premises, and the damages being unknown to
the court, it is ordered by the court that this cause as to Post
be referred to a jury for the assessment of the plaintiffs dam
ages herein, and the issues being joined as to Charles R. Bissell,
this cause is submitted to a jury for the assessment of plain
tiffs damages as to Post, and to try the issues as to Bissell.
The verdict was for the plaintiff, and damages assessed at
$3,333 #, which was largely in excess of the damages laid in
the declaration. The judgment of the court, based upon the

verdict, was in favor of the plaintiff and against the defend
ants, Bissell and Post.
These proceedings were palpably erroneous. All the parties

were before the court.
Morgan's appearance having been en
tered, he stood in the same attitude as though he had been

duly served with process. In such case, no final judgment
could be pronounced as to one or more without disposing of
the case as to all the defendants served. The same jury which
tried the issues as to Morgan and assessed damages as to Post,

could assess damages against the other defaulting parties, and
thus a joint judgment could have been rendered against all.
And although the law permitted final judgment to be entered
against two or more defendants served, without taking action
against defendants not served, it has not been construed to au
thorize the rendition of final judgment against only a part of the

defendants served, without disposing of the case as to the others.
Faulk v. Kellums, 54 Ill. 191; Kimball c Ward v. Tanner,
63 Ill. 519: Dow v. Rattle, 12 Ill. 373; Streeter et al. v.
Marshall S. M. Co. et al. 4 Col. 539.
A rule to plead having been taken, both against Post and
Hulett, judgment by nil dicit should have been taken against

both, and not against one only.
78
SUPREME Counr or Coronsno.

Mattison v. Childs et al.
The amount of the verdict in excess of the ad dam-num

might be remitted in this court, and a judgment entered for
the proper amount, Winne et al. v. Colorado Springs Co. 3

Col. 161, were it not for the other fatal errors.
reversed, and trial de novo ordered.
Judgment
Reversed.
MATTISON v. CHILDS ET AL.

1. Under the Code (section 14), an action upon a joint note may be main
tained against both jointly, or either, separately.
2. The survivor and the executor of a deceased joint maker caxmot, how
ever, be joined in the same action. and in such case it is irregular to proceed
against the executor without dismissing the complaint as to the survivor.
3. A judgment against an executor should be for a sum named payable
out of the estate of the deceased in due course of administration.
4. Execution may not issue against an executor. Section 2,924, Gen.
Laws.
5. In pleading the allegation that letters testamentary were granted and
issued by the County Court, is sufcient without averring an acceptance of the
trust and qualication therefor.
Appealfrom District Court of Weld County.

Tm: case is stated in the opinion.
Mr. J. M. FREEMAN, and Messrs. GEORGE and FAUNTLEROY,
for appellant.
ELBERT, J. The note declared on is in form the joint note
of Russell Fisk and Richmond Fisk.
_ Under Sec. 14 of the Code, an action thereon was maintain
able against both, jointly or either, separately. The section
provides That persons jointly or severally liable upon the
same obligation or instrument, including the parties to bills of
exchange and promissory notes, and sureties on the same or
.~
79
Mattison v. Childs ct al.
separate instruments, may all, or any of them, be included in

the same action, at the option of the plaintitl'.
The effect of this section is to abrogate the common law
rule respecting parties to actions on joint contracts of the des

criptions specied.
Richmond Fisk having died, a separate action was main

taiuable against either Russell Fisk, the survivor, or the execu
tors of the deceased; they could not, however, be joined in the
same action; as against one the judgment would be (la bomlw
pr0p'riz's, and against the other de In/nis te-st/ztoris.
In this
respect the Code is not believed to have changed the common

law rule.
Bliss on Code Plead. Secs. 105, 106, 107.
Hzt1/z
plireys v. Crane et al. 5 Cal. 177; May v. Ilanson, 6 Cal.
642; T/16 County of Wapello v. Bingham, 10 Iowa, 39. There

was, therefore, a misjoinder of parties defendant.
That summons issued only against the executors, and judg
ment was against them only, does not obviate the objection.
It was irregular to proceed against the executors without dis
missing the complaint as to the survivor, Russell Fisk.
The judgment is also bad in form, in that the executors are
charged personally. Judgment should have been for the sum
named, payable out of the estate of the deceased in due course
of administration. It was also objectionable in that it awarded
execution. Section 2,924, Genl Laws, provides That no exe
cution shall issue on a judgment against executors, but the

party recovering such judgment shall cause a transcript of the
record of the judgment entry to be led in the county court,
and the same shall be classed and paid the same as other
demands.
The allegation that letters testamentary were granted and
issued by the county court of \Veld county, to the defendants,
Childs and Fisk, is sutiicient. Such oicial act clothed them
with their representative character. 'Bliss on Code Plead.

Sec. 264.
Their acceptance of the trust and qualication
therefor need not be alleged; both are implied in the grant

and issuance of letters testamentary.
80

Willoughby v. George.
The judgment is reversed, with leave to the plaintiff below

to dismiss the complaint as to the defendant, Russel Fisk, and
move for a judgment against the executors de bonis testatoris.

Reversed.
ii
WVILLQUGHBY v. GEORGE.
1. Statutes limiting the time within which a. review may be had, whether
by appeal or writ of error, are in the nature of statutes of repose.
2. In appeal cases, when special pleading is not allowed. it is proper for the
respondent to apply to dismiss the appeal if it is not brought within the time
limited by the statute, orif the right to appeal is barred in any other manner.
3. Where the right to appeal is barred by lapse of time, the right to plead
the bar is a, vested right, and beyond the peril of subsequent legislation.
4. The statute (Act of 1879, Sec. 33, page 229), in so far as it allows a
writ of error to a, judgment in respect to which an appeal was barred prior
to its passage, is retrospective in its operation, andnot only within the con
stitutional prohibition, but within the prohibition of fundamental principles
governing retrospective laws.
Error to District Court of Boulder County.

MOTION to dismiss writ of error.
The case is stated in the
opinion.
Mr. Jom: W. Honmm, for appellant.

Mr. Tnonms GEORGE, pro se, contra.
ELBERT, J. This was an action of replevin brought by
George against Willo1iglil)y. Judgment was rendered against
\Villoughby, Nov. 3, 1877, after the Code went into effect.
At the date of the rendition of the judgment, and thereafter

until the passage of the act of Feb. 24, 1879, the only method
of review was by appeal. A writ of error did not lie. This
was decided on a. motion to dismiss a. writ of error sued out
Dscmrann TERM, 1879.
81
\Villoughby v. George.
by \Villoughby in this case, returnable to the December Term.

1877. Willougbby v. George, 4 Col. 22.
February 24, 1879, the legislature passed a law providing
that \Vrits of error shall lie from the Supreme Court to every
nal judgment of the several district and county courts of this

State, and such writs of error shall be amendable, and this see
tion shall be deemed to apply to all judgments or decrees
10/e/L /awe been rendered since the rst day of October, A. .D.,
1877, by any district or county court. Sess. Laws 1879, Sec.
38, p. 229.
The present writ is sued out under the provisions of this
section. The motion to dismiss is based on the constitutional
prohibition of laws retrospective in their operation.
The Code (Sec. 338) provided that an appeal might be taken
from a nal judgment " within six months after the rendition
of the judgment.
By reference to the date of the udgment, it will be seen that

the time within which Willoughby could prosecute an appeal
under the law, as it then stood, had elapsed long prior to the
passage of the act of the 24th of February, 1879.
Statutes limiting the time within which a review may be
had, whether by appeal or writ of error, are in the nature of

statutes of repose. They x a period when litigation shall
have an end, that the rights of litigants may become settled
and established.
.
'
In the case of Fleet v. Youngs, 11 Wend. 522, the statute
requiring a writ of error to be brought within two years after
the rendition of the judgment, is treated by Chancellor Kent
as a Statute of Limitation, and the lapse of time thereunder as
a defense to be pleaded in bar, or if apparent from the record,
available on motion to dismiss.

In the case of Brooks v. Norris, 11 How. 207*, Chief Jus
tice Taney says; In this case ve years had elapsed before

the writ of error was brought and the limitation of time in the
act of Congress was a bar to the writ. * * * The bar
arising from lapse of time is apparent on the record, and the
6
82

Willoughby v. George.
defendant may take advantage of it by motion to quash or

dismiss the writ.
It is true a writ of error is the commencement of a new suit,
and an appeal but a continuation of a suit, but the character

and effect of the limitation are the same.
Chancellor Kent, in
the case of Fleet v. Youngs, supra. recognizes no distinction.

He says: In appeal cases where special pleading is not
allowed, it is proper for the respondent to apply to dismiss the
appeal, if it is not brought within the time limited by the
statute, or if the right to appeal is barred in any other
manner.
In the present case, after the lapse of the six months within
which an appeal could be taken, an appeal was barred. As the
law then stood, the controversy respecting the subject-matter
ot' the suit was closed; the issues involved were res judicata;
Georges right of property in the udgment was indefeasible,
and his right to plead the lapse of time as a bar to an appeal,
was a vested right and beyond the peril of subsequent legisla
tion. Otherwise no such judgment can be rested upon as nal,
but stands qualied by a perpetual condition of defeasance
resting in possible future legislation.
There is no difference in principle between this case and the
ordinary case of a right of action barred by the Statute of Lim-'
itation.
In such a case, where the statute has once run and
the bar has attached, the right to plead it as a. defense is a
vested right which cannot be taken away or impaired by any

subsequent legislation. Cooley, Const. Lim. 365 and 369,
and cases cited. Sedgwick, Con. & Stat. 109 note, 6-H note.
The statute in question in so far as it allows a writ of error
to a judgment, in respect to which an appeal was barred, prior
to its passage, is retrospective in its operation, and not only
within the constitutional prohibition but within the prohibition
of fundamental principles governing retrospective laws, inde
pendent ot' constitutional or statutory enactments. Story,
Con. Sec. 1399. Sedgwick, Con. and Stat. 173. The writ must
be dismissed.
Dismissed.

Bond et al. v. First Nat. Bank of Santa Fe.
83
Ganebin v. Phelan.
BoND ET AL. V. FIRST NATIONAL BANK OF SANTA FE.

The bar arising from the lapse of time within which an appeal can be taken
is a vested right and beyond the reach of subsequent legislation.
Error to District Court of Las Animas County.

MoTION to dismiss writ of error.
Mr. S. S. WALLACE, for defendant in error.
Messrs. J. W. HoRNER, R. D. THOMPsoN and YEAMAN &

JoHN, contra.
ELBERT, J. Judgment in this case was rendered May 24th,

1878, and the six months within which an appeal could be
taken, as the law then stood, had elapsed prior to the passage
of the act of February 24, 1879.
The case in no respect differs from the case of Willoughby

v. George, decided at the present term. The bar arising from
the lapse of time within which an appeal could be taken had
attached and was a vested right, and beyond the reach of subse
quent legislation. The writ must be dismissed.
Dismissed.
GANEBIN v. PHELAN, Impl. etc.

Under the Code (section 37) service upon the agent of the receivers of a for
eign corporation, held sufficient.
Appeal from District Court of Arapahoe County

Messrs. JAcobson & DEVEREUx, for appellants.
Mr. I. E. BARNUM, for appellee.
84

Ganebin v. Phelan.
Upon petition for re-hearing, the following opinion was deliv

ered:
STONE, J. In the opinion of the court, rendered upon a hearing

of this case, it was held that service of the writ which would
have been good upon the railroad company, was good upon its
receiverS.
It is contended by appellants that under the statute regula

ting the mode of service upon corporations (Genl Laws, Sec.
30, 153), if the service is had upon an agent it must be upon a
general agent, and that this fact should appear by the return
upon the writ.
We think the service in this case is not to be governed by
the statute referred to, but by that provision of the Code (Sec.
37, p. 13), which is as follows: If the suit be against a
foreign corporation, or a non-resident joint stock company or

association doing business within this State, service shall be
made by delivering a copy of the writ to an agent, cashier or
secretary thereof.
The Kansas Pacific Railroad Company, being a foreign cor

poration, the receivers, who by their appointment as such dis
placed the ordinary officers of the corporation, are to be treated
as foreign receivers, and if the return of the sheriff shows a
service that would have been sufficient upon the corporation
under its ordinary management, it must be equally sufficient
if made upon an agent of the receivers when the affairs of the
corporation are under the management of the latter. The re
turn is as follows:
I have duly executed the within by delivering a true copy

of both the within writs to J. T. Odell, agent of Henry Villard
and C. S. Greeley, receivers, etc.
Under the provisions of the Code referred to, this shows
sufficient service. This being the only question raised upon
the re-hearing, we see no cause for changing the opinion of the
court heretofore rendered, and it will accordingly stand.
85
Ross v.vDugga.n et a.l.
Ross v. DUGGAN ET AL.

1. A deed absolute on its face, but intended as a mortgage, is not fraudu
lent and void as to creditors. Under the weight of authority such a convey
ance is an indication of fraud merely as against existing creditors, not con
clusive evidence of fraud, and may be removed by evidence of an honest in
tent.
2. A person having two funds out of which to satisfy his demands, shall
not in equity by his election disappoint a party who has only one fund. The
assertion of the principle is not affected by the nature of the property which
constitutes the double fund, but applies wherever a paramount creditor holds
collateral security, or can resort collaterally to other real or personal property
for the satisfaction of his debt.
The prior incumbrancer is entitled to notice of the junior claim, and of the
intention of the junior creditor to compel the former to make his election in
compliance with this principle.
The rights of the junior creditor to have this principle administered is or
dinarily enforced by a decree of subrogation.
To charge the senior creditor, after notice, he must be shown to have been
a willful party to the dissipation or loss of the fund.
Wherethe second fund consisted of chattels remaining in the hands of the
ilebtor,held that the senior would not be accountable as for a perfect secu
l'ltV.
3. This court cannot consider matters of evidence upon stipulation merely,
and not properly brought up by the record.
Appealfrom District Court of Arapahoe County.

Tm: appellant, Ellen Ross, led her bill of complaint in the
District Court of Arapahoe County, substantially as follows:
That about the 19th of March, 1866, James Duggan was in
debted to J. Bright Smith, in the sum of $1,000; whether the
indebtedness was evidenced by note was unknown. That on
said day Diiggan conveyed to Smith certain real estate de

scribed, to secure said indebtedness, and future advances;
that the deed was in fee, but intended and received as a
mortgage. Complainant was not informed when the indebt
edness to
Smith was due, but averred on belief that it
was not to exceed three years from said day.
Said deed was
86
SUPREME Cotmr or COLORADO.

Ross v. Duggan et a.l.
duly recorded; that it contains a clerical error in the use of

the word corner for the word quarter in describing said
real estate; that about 20th April, 1870, Duggan and Smith
had a settlement of their accounts, at which it was found
Duggan was indebted to Smith in the sum of $2,791.98; said
indebtedness so due from Dnggan to Smith was for a valuable
consideration conveyed to the complainant, and that the prop
erty thus conveyed to secure the same, was also conveyed; that
Duggan executed his promissory note to the complainant in
said sum on said day; that on said day Smith, with the knowl
edge and consent of Duggan, conveyed said property to
the complainant, complainant receiving the same as secur
ity for Duggans note; that on 31st October, 1870, said
note and interest being unpaid, Duggan then being indebted
to complainant $3,116.25, executed and delivered to complain
ant his promissory note that day for said sum, payable to
complainant one year thereafter; that complainant retained
said real estate as security for said note; that on 31st May,
1573, complainant recovered judgment on said note in said
district court against said Duggan for $5,278.60; that on 20th
May, 1874, execution was issued thereon; 20th August, 187-L,
execution returned nulla 6072/l.
Said judgment nor interest
has been paid to the complainant by Duggan. Duggan has no

other real estate than that described and conveyed to the com
plainant; has no adequate remedy at law, and is remediless
except in equity. That the fee of said property is in complain
ant, redeemable nevertheless in equity by Duggan on payment
of judgment and interest; that Dnggan refused to pay said
note and interest prior to obtaining said judgment; that cer
tain other parties, naming them, have or claim some interest
in the property, the nature of which is unknown to complain
ant, but whatsoever it is, it occurred subsequent to complain
ants lien. Names parties defendant and prays they he sum

moned. Prays that an account may be taken of what is due
complainant upon said judgment; that defendants be ordered
to pay the amount found to be due upon such account within
87
Ross v. Duggan et al.
a short time, and that in default thereof the said mortgaged

premises be sold under decree of the court, and proceeds ap
plied in satisfaction of said debt, costs and charges, and defend
ants, or persons claiming by, through or under defendants
subsequent to the commencement of this suit, be forever
barred and foreclosed, etc. In case money arising from sale of

said premises be insufficient to pay the amount due, the bal
ance due complainant shall be made by levying on any other
property or estate of the said Duggan.
A decree pro confesso, was entered against James Duggan
Edward Seiber, P. P. Wilcox, Elias Brown, Peter Magnes, and

other defendants.
Mary A. Duggan and John Dee, defendants, answered sub

stantially as follows: Defendants not advised that on 19th
of March, 1866, Duggan was indebted to Smith in any sum.
Admit that at the time specified Duggan was seized in fee
simple of said lands as alleged; that at said time, 19th March,
1866, Duggan was largely indebted to one Martin and other

creditors, the same being due, and said creditors were pressing
said Duggan for payment. Admit that on said day Duggan

executed and delivered to said Smith an absolute deed for said
premises, but whether or not the same was intended as mort

gage to secure the existing debt, and further advances that
might be made thereon, defendants not advised and cannot ad
mit or deny, but allege that said deed was made to delay, hin
der and defraud the said Martin and other creditors of
thea said Duggan in the collection of their just debts.

Cannot state when Duggan's indebtedness to the same
accrued if any such indebtedness existed. Admit that said
deed from Duggan to Smith was recorded as alleged.
Cannot admit or deny that Smith and Duggan had a settle
ment on 20th April, 1870. Allege that on 8th of Octo
ber, 1868, Duggan made his promissory note to Smith for
$2,000, which said note defendants charge was in full of all
indebtedness from Duggan to Smith. At the same time to
secure said note, Duggan made and delivered to Smith a chat
88

tel mortgage upon a large amount of personal property, de

scribing the same. Allege the value of said property $3,000;
that note and mortgage were accepted by Smith as a full pay

ment of said supposed indebtedness from Duggan to Smith.
Said mortgage duly recorded, etc. That on 17th September,
1868, Martin for himself and for his firm, brought suits against
Duggan in said district court, and at the October term, same
year, Martin recovered judgment against Duggan for $231 and

costs, and Martin & Co. at the same time recovered judgment
against Duggan for $1,365 and costs. Martin afterwards
caused execution to be issued thereon to the sheriff in the
usual form. The sheriff by virtue thereof sold said described

lands to Samuel E. Browne. Afterwards, on the 4th day
of November, 1869, sheriff's deed given to said Browne for
all of the said lands. Allege that by virtue thereof Browne
became the owner in fee of said property; of all of which
said Smith had notice; that at said time Smith had and
held
said
was
than
said chattel mortgage upon said personal property of

Duggan, and that said property then remained and
in the possession of the said Duggan, and was more
sufficient to have paid said debt from Duggan to
Smith; that Smith neglected to take any proceedings to

collect said debt, and that by such neglect the same, i.e.,
the personal property, became and was wholly lost; that said
personal property was left in the hands and possession of said
Duggan by said Smith, until after the lien of said chattel
mortgage expired, and that now the same has passed out of
the hands and possession of Duggan, and Duggan is
and unable to pay the debt; that the complainant is the as
signee of Smith, and that she took the same with full notice
of all the premises, and is not therefore entitled to have said
pretended mortgage enforced in equity against the defendants,
who are the assignees of said Browne for a valuable considera
tion. Cannot admit or deny that on 20th April, 1870, said
Smith and said Duggan had a settlement of the accounts be
tween them, and that Duggan fell indebted to Smith $2,791.98.
89
Defendants allege that at that time neither Duggan nor Smith

could do anything to affect the rights of said Browne in and
to said premises, nor the defendants vendors; that at the
time Browne became the owner of said land, said Smith held
said chattel mortgage against said personal estate of Duggan;
that said mortgage covered and was a valid lien upon said
personal property of Duggan, and that the same was sufficient
in value to pay Duggan's debt to Smith. Allege that Smith, by
neglecting to collect his debt from Duggan out of said personal
property, thereby lost all lien which he then had upon said
lands, and that defendants now are, by virtue of said purchase,
the owners of said lands and premises, and ought not in equity
to be compelled to pay said debt from Duggan to Smith.
Denies that the debt of Duggan to Smith was transferred to
complainant with consent of Duggan. Admit that on 20th
April, 1870, Smith conveyed to complainant by absolute deed
said lands; deny that Smith had any right or authority of
law to make such conveyance, and that the same was not made
with the consent of Duggan. Cannot admit or deny that at

that time Duggan made to complainant his promissory note.
Deny that at the time stated Smith had any right or interest
in said lands which he could convey to complainant. Allege
at the time of deed from Smith to complainant, Duggan had

no power or authority to make any bargain or agreement to
bind said land; that at said time, viz.: 19th April, 1870, the
whole of Duggan's interest in said lands had been sold as
aforesaid, and was then vested in said Browne, and that said
Duggan or Smith had no right to make the conveyance to com
plainant. Allege that on 7th February, 1872, Mary A. Dug

gan, one of the defendants, bought all the rights, title and
interest in said realty in Browne of him for $2,000, and on the
same day said Mary A. made and delivered to James O'Neal a
mortgage to secure the payment of a note of that date for $2,100
and interest; that after default had been made by said Mary A. in
the payment of said note, a bill in chancery was filed to foreclose
said mortgage; that afterwards, by virtue of a decree of the
90
SUPREME Comm" or COLORADO.

court, said realty was sold by a master in pursuance ofsaid decree

of foreclosure to John Dee, for the sum of $3,000; that the sale
was conrmed by the court, and after the time allowed for re
demption the Master made a deed thereof to said Dee, con
veying all the right, title and interest of the said Mary A. in
and to said realty. Allege that on 31st October, 1870, James

Duggan made his note to the complainant for $3,117.27 ; that
at said time said Duggan made chattel mortgage to the said
Ross on certain personal property, describing it, of the value
of $3,500; mortgage being made to secure the payment of

said note, and all of said alleged indebtedness of Duggan to
complainant. Allege that at time complainant took said note
and chattel mortgage she knew that said Browne was the owner
by purchase as aforesaid of the interest of said James Duggan
in and to said realty. Allege that said Smith neglected to col

lect money due from Duggan to him upon the said note and
chattel mortgage, and that complainant neglected to collect
money said to be due to her from said Duggan upon said note
and chattel mortgage, although the property covered by said
chattel mortgage was of more than suicient value, if sold, to pay
and satisfy said note. By reason whereof defendants allege they
are released from the payment of any money supposed to be due
from Duggan to Smith or complainant, and that said lands and

premises are, and of right ought to be, free and discharged from
any lien thereon; that the property covered by chattel mortgage
from Duggau to complainant, was by complainant permitted to
remain in the possession of Duggan until after maturity of the
note; and that the lien of said mortgage was lost by neglect of
complainant, and is not now alien on said property, although
complainant was duly notied by Browne to collect the same,

and to take possession of the said property and sell the same
in discharge of the note. Allege Duggans insolvency and
inability to pay complainant, and that if defendants are com
pelled to pay the same they will be unable to collect it from
Duggan. Admit complainant sued Duggan in district court.
Allege that it was wholly undefended by Duggan. Admit
DECEMBER Tenn, 1879.
91
the issue of the execution thereon, but cannot admit or deny

as to the return of the sheriff. Cannot admit or deny that
James Duggan is indebted to comphiinant. Deny that the
legal estate of said lands is vested in complainant, but submit
that the same is a question of law and equity, to be decided by
the court, and therefore pray to be hence discharged.
Afterward James ONeal led his bill of complaint against
Ellen Ross, the same being substantially as follows:
That on 19th March, 1866, James I_)ug-gan owned in fee cer
tain lands (description thereof), the same being the land de
scribed in Ellen Ross bill.
That on said 19th March, 1866,
Duggan was heavily in debt, embarrassed and in failing cir

cumstances nancially; was sorely pressed and annoyed by his
creditors; that he and one J. Bright Smith on said day coin
bined, conspired and confederated together to cheat said cred
itors of Duggan, and in furtherance thereof, Duggan on said
day pretended to convey said land to Smith with covenants of
general warranty; that the pretended consideration in said
deed is put down at $1,000. A copy of said deed annexed
marked A. alleges that Duggan did not owe Smith anything
on said day; that said pretended deed from Duggan to Smith
was executed without any consideration; Smith never paid
Duggan any part of said pretended consideration; that Duggan
never received any consideration whatever from Smith or any

one else for said pretended conveyance, and that said pretended
conveyance was nothing but a sham and fraud to deter and
keep o' the creditors of Duggan, and prevent them from col
lecting their debts, and notwithstanding said pretended con
veyance remained the property of Dnggan, and as such was
liable for the just debts, and Smith never had anything _more
than a mere colorable title, with no interest in it whatever.
That on 8th Oct., 1868, said Duggan and said Smith again
combined, etc., to cheat, etc., creditors ot' said Duggan, and in
furtherance thereof Duggan did then pretend to give a chattel

mortgage on personalty (describing it), then on farm of Dug
gan in Arapahoe county, which was pretended to be given to
92
SUPREME Coonr OF COLORADO.

secure payment of $2,553 on or before 7th Oct., 1870.
chattel mortgage marked exhibit B.
Said
That Duggan did not
owe Smith anything on said 8th day of October, 1868; that
altliougli chattel mortgage expresses a consideration of $2,000,

in truth Smith paid Duggan nothing for the same, and no
consideration passed between them therefor, and Duggan
never did receive any consideration, or any one else, therefor;
that it was nothing but a sham, etc., and was done to keep
said personal property from Duggaus creditors; that Smith
and Duggan had succeeded admirably in hiding Duggans real
estate from Dugg-ans hungry creditors; hence they concluded

to place Du ggans personal property under the protecting
wing of Smith. and said pretended chattel mortgage was simply
held by Smith to enable Duggan to use and reap the benets of
said personal property.
Smith never attempted to enforce or
foreclose said mortgage, but on the contrary stood by and permit

ted Duggan to dispose of the whole of said property for the sole
use and benet of Duggan without objection; that said Smiths
conduct in the premises was in keeping with the objects and
purposes for which said pretended chattel mortgage was given;
that Jolm H. Martin at the October term, 1868, of said district
court of said county, recovered a judgment against James
Duggan for $231 and costs; and that John H. Martin and
Clifton A. Barnes recovered judgment at the same time in the

same court against James Dug-gan for $1,365.99; that execu
tion issued on both of said judgments on the 21st day of De
cember, 1868; that the sheriff by virtue thereof levied upon
said lands, and sold the same to S. E. Browne; that on 4th of
November, 1869, sheriff executed deed therefor to Browne,
which was recorded and is marked exhibit C; that Browne

continued to own said lands until Tth February, 1872, and that
on 20th April, 1870, Duggan, Smith and Ross combined, etc.,
to cheat said Browne and defeat his right, etc., in and to
said lands, and that in furtherance thereof, they did on said

day pretend to convey said lands to Ross by quit-claim
deed, the consideration expressed in said deed being $2,800, a
93
Ross v. Dnggan et al.
copy of said pretended deed being attached, marked exhibit
D. That Duggan did not owe Smith or Ross anything

on said day; that Smith nor Ross was creditor of Duggan
on said day; said pretended deed from Smith to Ross was
executed without consideration; that Ross never paid Smith

or Dnggan any part of said pretended consideration; that
neither Smith nor Duggan ever received any consideration
whatever from Ross or anyone else, for said pretended deed.
and that the same was nothing but a sham and cheat, etc.,
upon the right, etc., of said Browne in said lands, and that
said lands, notwithstanding said deed, remained the property

of Browne, and Ross never had, and has not now, anything
more than a mere legal title therein, really fraudulent and with
no interest therein. Alleges that Duggan, notwithstanding said
deed to Smith and the one from Smith to Ross, remained on
said lands and continued to occupy them; that neither Smith

nor Ross ever exercised any ownership or authority over said
lands; that Ross, in order to fully carry out and consummate
said fraud, together with Dnggan and Smith, and in order to
carry out said confederation, etc., induced Duggan to give her
a pretended chattel mortgage on the 31st day of October, 1870,
on the personal property described, said personal property be
ing on said lands; said mortgage was pretended to be given to
secnre payment of $3,116.27, on or about 31st day of October,
1871. The same is marked exhibit E. Alleges that said

pretended chattel mortgage was given without consideration,
and that Duggan did not pay Ross anything at that time, and
that the same was a cheat, etc., and intended to defraud,
etc., creditors of Diiggaii; that Ross never attempted to en
force the same, but, on the contrary, stood by and permit
ted Duggan to dispose of the whole of said personal prop
erty to the sole use and benet of said Duggan without oh
jcction, and all Ross conduct was in keeping with the object
and purposes for which said confederacy, etc., was entered
intol
That on February 7th, 1872, Browne still being the
owner of said lands, then and there conveyed the same to
94

Ross v. Duggau et al.
Mary A. Duggan by quit-claim deed for $2,000 cash. Said

deed was recorded, and is marked exhibit F. That on
said 7th February, 1872, said Mary A. Duggan gave her
promissory note, payable six months thereafter, to complain
ant ()Neal, for $2,100, with interest from date until paid, at
two per cent. per month for value received ; a copy thereof
marked exhibit G. That Mary A. Duggan on said 7th
February, 1872, executed mortgage on said lands to secure said
ONeal the payment of said note, and that said James Duggan
joined with her in the execution of said mortgage. The same
was recorded. Is marked exhibit H. That Mary A. Dug
gan did not pay said note at its maturity, and while same was
past due and unpaid. said ONeal, for a consideration,assigned
the same to John Dee, and that afterwards, said note remain
ing unpaid, John Dee led a bill in said court, April term,
1873, against said Duggan, to foreclose said mortgage for the
purpose of paying said note. That at said term a decretal order
was rendered therein and the premises were sold by a master
in accordance therewith; that said Dee bid in said land for
$3.000, and the same was not redeemed ; and on the 16th of
December, 187-1, master executed a deed therefor to Dee ; that

the proceedings were regular, &c. Said deed marked exhibit
I.
That on 18th of March, 1876, Dee, for a consideration,
conveyed said lands to ONeal by quit-claim deed, marked

exhibit J ; makes Ross defendant to the bill. Answer under
oath waived.
Prayer of bill: That defendant has no interest in said lands
whatever; that she is merely the custodian of the legal title

thereof, and holds the same in trust for ONeal,who is the real
and true owner thereof; that defendant, Ross, be compelled,
within some short time, to be designated by the court, to con

vey to said ONeal the title thereof; and in default thereof
that a master be appointed a special commissioner to convey
unto said ONeal the said rights, etc., in and to said lands, and
that should ONeal be mistaken as to the nature of the relief

sought, he prays for any other relief, or any different or gen
eral relief that he may be entitled to from the facts.
95
Afterward Ellen Ross answered the bill of O'Neil as follows:
Admits that on 19th March, 1866, Duggan owned the real

estate described in fee simple, that on 19th March, 1866, Dug
gan conveyed the same with covenants of general warranty,
but denies that at the time of the said conveyance to Smith,
Duggan was heavily in debt, financially embarrassed and in
failing circumstances, or either thereof, except the debt he
then owed to Smith, and defendant avers that Duggan was
then largely indebted to Smith. Defendant denies that Dug
gan and Smith on said 19th of March, combined and confeder
ated together, etc. Admits the consideration in the convey
ance was $1,000, and alleges that at the time deed was made
Duggan was indebted to Smith in a large amount, about the
sum of $1,000; that conveyance was given for the purpose of
securing indebtedness then existing, and also such further loans
debts and advances as should from time to time be made; and
defendant denies that conveyance was a sham or fraud, etc., or

made to deter or keep off the other creditors of Dug
gan, and prevent them from collecting their just debts, etc.
Denies that after conveyance, said land remained the property
of Duggan, and Smith had only a naked legal title without
any interest therein. Defendant alleges that after said con
veyance said Smith held the said land as security for said debt
then due to him from Duggan, and likewise for further loans
and advances, as before stated.
Defendant admits that on the
8th of October, 1868, Duggan gave Smith a chattel mortgage

upon certain personalties, as is set forth and described in said
bill; but avers that whether said mortgage was given or not is
wholly immaterial. Denies that on 8th of October, 1868, Dug
gan was not indebted to Smith; but on the contrary, Duggan
was indebted to Smith in nearly the sum of $3,000 over and
above all set-offs; and further avers that said chattel mortgage
was given in good faith for the purpose of more effectually se
curing said indebtedness, and as additional security, and that
afterwards, Smith elected to rely upon said mortgage upon the
land, as he had a right to do. Denies that said chattel mort
96
SUPREME Conan. or COLORADO.

.
gage was a sham or cheat, or was given for the purpose of

keeping said personalty from Duggans creditors, but at the
time the same was given, Duggans indebtedness to said Smith
had increased to nearly the smn of $3,000, in pursuance to
the aforementioned understanding as to advances, to-wit, on

said 19th of March, 1866. That on said Sth of October, 1868,
said conveyance was held and operated as security for said
indebtedness. Defendant denies that the chattel mortgage was
the result of a combination and conspiracy between the par
ties thereto, for the purpose of cheating and defrauding the
other creditors of Dilggan, and that as to the allegation that

the success of the said parties in hiding their realty afforded
them encouragement in stowing away personalty from his,
Duggans, creditors, defendant passes by as impertinent mat
ter, and t only to be expunged. Defendant admits that Mar
tin, at the October term, 1863, of the District Court of Arap
ahoe county, recovered a judgment against Duggan for $231.01,
and also that Martin and Barnes, at said term of said court,
recoveredjudgment against Duggan for $1,365.99. Defendant

neither admits nor denies that executions were issued on both of
said judgments of 21st of December, 1868, nor that by vir
tue of said executions the lands referred to were levied upon

and sold by Browne, or that afterwards, on November 4th, 1869,
Browne received a sheri"s deed for the same. Defendant avers
that she has no knowledge or information thereof on which to
base belief, etc. Denies that Browne became the owner of said
land by virtue of said sheritfs deed, or continued to own it
from 4th of November, 1869, to 7th of February, 1872, but

alleges that any sale of said land under execution issued to
Ilnnvne, if any was made, was subject to the lien of said
mortgage by virtue of said conveyance and mortgage; that at
the time the amount and nature of the lien to Smith was well
known to both said Martin, Barnes and Browne; that at the

time of said execution and sale, Browne was the attorney of said
Smith and said judgment creditors, and any purchase of land

by him was with full notice of the lien of said Smith and sub
Drzosnmm TERM, 1879.
97
ject thereto; that Smith conveyed said land to defendant by

quit-claim deed, for a consideration of about $2,800, but she
denies any and all combinations, conspiracies, etc., for any
purpose whatsoever.
Th-at on 20th of April, 1870, Dnggan was
justly indebted to Smith in the sum of $2,791.98, and-that
said indebtedness was secured by mortgage dated March 19th,

1866, from Duggan to Smith; that on said 20th of April, 1870,
for good consideration, defendant purchased said indebtedness

from Smith and thereupon received from him the said quit-claim
deed as and for an assignment of the said lien or mortgage, and

at the same time received from Duggan his promissory note
for the amount last named, payable to herself on or before
the rst day of November, 1870, with interest at the rate
of 2% per cent. per month. Denies that deed from Smith
to her was a sham, etc., upon the rights of Browne in said
lands, or that the lands, notwithstanding her deed, remained
the_ property of Browne. Denies that she ever had nor now has
more than a mere naked legal title, without interest therein.
Neither admits nor denies that nothwithstanding conveyance
from Smith to her, Dnggan remained on said lands and con
tinued to occupy them. Denies that neither Smith nor herself

ever exercised any ownership or authority over said lands.
Admits, 31st of October, 1870, Duggan gave her a chattel
mortgage on certain persoualty, described, etc., being on said
lands, and in the actual occupation of Duggan. Admits that
mortgage purported to be given to secure payment of $3,116.29
on or before 31st of October, 1871,hut denies that in order
to carry out and consummate the fraud perpetrated by Dug
gan, Smith and defendant on the rights of said Browne in

said land, said chattel mortgage was given. Denies that said
chattel mortgage was given without any consideration, and
that it was a cheat, or sham, or fraud, etc., or intended to
defraud, etc. Admits she did not foreclose chattel mort

gage. Avers she elected to rely upon her lien upon said lands.
Avers that on the 31st October, 1870, when chattel mortgage

was given, Duggan was indebted to her in the sum of $3,116.29,
7
98

and such debt was a lien on said land by virtue of said mort
gage; that at that time Duggan gave her his note for said
sum, payable to her in one year, with interest 23 per month,
which was secured by said lands. Admits that on 7th Feb
ruary, 1872, Browne made to one Mary A. Duggan a quit
claim deed for said land, but as to the consideration in the deed
being paid, in fact, has no information, etc. Avers that deed

to Mary A. Duggan had no part or lot in the transaction, but
that her name was inserted in the deed with the view of compli
cating the title to said lands, and so to defeat, if possible, the lien
of this defendant. Avers that deed made by Browne to Mary A.
was without her knowledge or consent; that she gave no consid
eration therefor, but in the transaction represented her hus
band James, and the effect of the deed was the same as if it
had been given directly to her husband.
Admits that on 7th
of February, 1872, Mary A. gave her note, payable in six

months, to O'Neil, for the sum of $2,100, as stated in bill, but
avers that legal effect of note is a question of law. Admits

that on 7th February, 1872, Mary A. with her husband pur
ported to execute a mortgage on said lands. Avers that if
any deed was given by James Duggan and wife to O'Neil it was
subject to the Ross lien. Neither admits or denies that Mary

A. Duggan failed to pay said note at maturity. Admits that
note was assigned by O'Neil to Dee, and that he foreclosed
said pretended mortgage by Duggan and wife, and that by
virtue thereof, the land was sold and bid in by Dee, 16th Feb
ruary, 1874; but as to the effect of the foreclosure and sale, it
is left as a question of law for the court. Avers that such sale
in no wise affected Ross lien on said lands.
Admits that on
16th December, 1874, Dee received a master's deed for the
land. Admits that on 18th March, 1876, Dee gave O'Neil

quit-claim deed for said lands. Defendant avers that she had
the first lien on said lands to secure sum of about $7,316.00,
which is justly due and owing her from said Duggan, and
that any and all rights which O'Neil or any one else may have
or claim in or to said land, are subject to her said lien. Avers
99
that said judgments so recovered, as before admitted, against

Duggan by Martin and also Martin & Barnes, were recovered
upon an indebtedness subject to the lien created to Smith,
and that Browne's purchase of said land at the time and in the
manner set forth, was with a full knowledge of the lien
of Smith, and with the intention and expectation on the part
of
#
!.
Browne that the lien of Smith would have first to be
fully satisfied; that O'Neil at the time of taking his pretended

mortgage was well and fully advised of the nature and extent
of the defendant's claim and lien, and he took said pretended
mortgage with the intention and expectation that the lien of
the defendant would have to be fully satisfied in preference to
his; and defendant avers, that the lands have, since the
mortgage was given in March, 1866, until the present time,
in whosesoever hands they have been, and whatever transactions
have been made in reference to them, continued to be charged
with the said lien of Ross. Denies any and all manner of un
lawful combination, etc.
To this answer O'Neil filed a general replication

It was then stipulated that the case of O'Neil against Ross,
and the case of Ross against Duggan et al., should be consoli
dated and proceed together as one case.
The cause was then referred to the master to take proof.
Upon the coming in of the master's report the court entered a
decree substantially as follows:
That the deed of conveyance, bearing date April 20th, 1870,
made by Smith to Ross, describing premises, being lands in
controversy, be set aside, vacated, and declared null and void

as against O'Neil; that Ross is the mere custodian of legal
title of said real estate in trust for O'Neil, who is adjudged
and decreed the real owner of said land, and entitled to have
the legal title thereto conveyed to him by Ross; that the said
Ross shall convey such title to O'Neil on the incoming of
court on the morning of the 17th of October, 1878, and in de
fault thereof the master is appointed a special commissioner of
the court to convey said title; that a certified copy of the de
100
SUPREME CoURT OF CoLoRADo.

cree shall be recorded in Arapahoe county; that Ellen Ross

pay the costs in the consolidated suit.
To reverse this decree Ellen Ross prosecutes this appeal.
Messrs. BUTLER, WRIGHT & KING, for appellant.
Mr. B. M. HUGHES, Mr. C. S. EYSTER, and Mr. E. P. HAR
MAN for appellee.
STONE, J.Appellant, as a creditor of Duggan, was secured
by a deed from him of certain lands, which deed it is admitted
was intended as a mortgage only, and further security was
given by a chattel mortgage of personal property.
O'Neil, one of appellees, claims title to the land by virtue
of a sale under a junior lien created by a judgment against
Duggan.
The two cases of Ross v. Duggan et al. and of O'Neil v.
Ross et al., were consolidated in the court below by stipula
tion, and are to be considered together as one.
The material allegations in the bill of O'Neil, as ground for
the relief prayed are, first, a charge of conspiracy to defraud,
and the perpetration of fraud on the part of Smith, Duggan
and appellant in the several conveyances of the land to Smith
and appellant; and, second, that, admitting the original valid
ity of the lien created by the deed to appellant, it was lost by
reason of the negligence with which appellant was chargeable,
in the dissipation of the personal property, which was one of
the two funds upon which her security rested.
It is contended by counsel for appellees, that a deed abso
lute on its face, but intended as a mortgage only, is fraudulent
and void as to creditors. A few decisions may be found which
go to this extent. But the weight of authority, as well as the

sounder reasoning upon principle, favors the different doctrine
that such a conveyance is an indicium of fraud, as against ex
isting creditors, and is not conclusive evidence of fraud; it is
a badge of fraud, merely, which may be removed by evidence
if honest intent. Gibson v. Seymore, 4 Vt. 521; Harrison v.
101
P/tillips Academy, 12 Mass. 456; Stevens v. Ilinckley, 43

Me. 440; Emmons v. Bradley, 56 Me. 333; Bank v. Jacobs.
10 Mich. 349.
See also, Bump on Fraud. Gonv. p. 84, and
cases cited.
The allegations of fraudulent intent of conspiring to de
fraud, and of the perpetration of fraud by the parties to the

deeds in controversy, are not well supported by the testimony
in the case, and we cannot but conclude from the whole evi
dence in the record, that the bona le character of the indebt

edness which the deeds were given to secure, and the good
faith of the parties to the transaction, are fairly established.
The second ground upon which the Ross lien is attacked
that it became lost or impaired by the acts of the lienor-
raises a more ditcult question. We fully recognize the force
of the equitable doctrine applied to creditors having liens on
different funds, namely, that a person having two funds to
satisfy his demands, shall not, by his election, disappoint a
party who has only one fund (Aldrich v. Cooper, 8 Ves. 388),
or as stated by Chancellor Kent with his accustomed clearness
in U/weseborough v. llfillard, 1 Johns. Ch. 409:
If a cred
itor has alien on two different portions of land, and another

creditor has a lien of a younger date on one of these parcels
only, and the prior creditor elects to take his whole demand
out of the land on which the junior creditor has alien, the
latter will be entitled either to have the prior creditor thrown
upon the other fund, or to have the prior lien assigned to him,
and to receive all the aid it can afford him. This principle, de
rived from the civil law and incorporated into the English
chancery law, is sometimes called the doctrine of substitution,
and is most usually applied to the marshaling ot' assets in

bankruptcy cases and the like. The operation of the princi
ple is not affected by the nature of the property which con
stitutes the double fund, but applies wherever a paramount
creditor holds collateral security, or can resort collaterally to
other real or personai estate for the satisfaction of the debt.
DeLeyater v. Hild/-tth, 2 Barb. Ch. 109.
102

The rule briefly stated by Chief Justice Marshall, in Allston

v. Munford, 1 Brockenbrough, 279, is: if a creditor having a
choice of two funds, should, contrary to equity, so exercise
his legal rights as to exhaust that fund to which alone other
creditors can resort, then those other creditors will be placed
by a court of equity in his situation, so far as he has applied
their fund to the satisfaction of his claim. And undoubtedly
where a loss of such fund is occasioned by collusion of a cred
itor with the debtor, or by willful or intentional neglect to

preserve the fund, relief, if invoked in the proper time and
manner, may be afforded the other creditors who have been
injured thereby, under the general principles of equity in
volved in the case. But it must be admitted, that in any case
the prior incumbrancer is entitled to notice of the existence of
the junior claim, and of the intention of the junior creditor to
compel the former to make his election in compliance with
this principle. Taylor's Erecutors v. Maris, 5 Rawle, 55;
Guion et al. v. Knapp et al. 6 Paige, 35; Clark v. Bancroft,
13 Iowa, 321.
The right of the junior creditor to have this principle ad

ministered is ordinarily enforced by a decree of subrogation.
2 Lead. Cas in Eq. 261, 262, and cases cited. He cannot

administer this right himself, upon his own assumption that
the acts of the prior creditor have conferred such right. This
is for the chancery court to pronounce upon. 1 Story's Eq.
Jurisp. Sec. 633, 639, et seq.
So far as the record shows, the acts of the appellant as the
prior lienor in this case, in so far as they affected the loss of
the personal property in question, were not affirmative, di
rectly resulting in the loss, and after proper notice of the
rights of other creditors. The cases where this doctrine has
been applied are based on affirmative acts of the senior lienor
releasing the fund to the prejudice of the junior. I have been
unable to find any case applying the doctrine where there was
a loss of the fund by neglect of the senior lienor.
What measure of diligence does the rule impose after no
-
103
ticel It must be borne in mind that the rule itself is based

gargely on an equity against the debtor, to wit: that the acci
dental resort of the senior lienor to the doubly charged estate,

and the consequent exhaustion of that security, shall not en
able the debtor to get back the second estate discharged of
both debts.Vide notes to Aldrich v. Cooper, 2 Lead. Gas. iu

Eq. 264.
While, therefore, the rule would forbid airmative acts, and
doubtless collusive acts defeating the unior creditor, it would

not impose upon the senior any additional care or expense
touching the preservation of the second fund. Gross negli

gence will not charge him; it would not be mala des, but
only evidence of it. His negligence must be wanton, such as
to amount to a constructive fraud. He must be a willful party
to the dissipation or loss of the fund. Oovanhoven v. Hart,
21 Pa. St. 500; Emmons v. Bradley, 56 Me. 337.
The second fund in this case was in its nature an imperfect
security.
the debtor.
It consisted of chattels remaining in the hands of

It was peculiarly liable to loss or dissipation, and
largely at the mercy of the debtor. One having real estate

security would take the other as a contingent, not as a certain
security.
'
In such case, clearly, the senior is not accountable as for a
perfect security. Otherwise, it would be substituting the
junior to the rst and not the second fund before the prior en
cumbrancer had been put in default. 7
If both funds were in existence at the time the execution

was issued on the Martin judgment, that judgment became a
lien on both funds under the statute; but the judgment cred
itor was not entitled at his own election to push the older
creditor off the real property and compel her to satisfy her debt
out of the more precarious security afforded by the chattel

mortgage. He was not entitled to thus administer his own
rights. All he could demand would be that the senior creditor
should not release the second fund, or contribute to its loss by
that degree of negligence we have specied. The chattel mort
104
Suraaus Couar or COLORADO.

Ross v. Duggan et al
gage executed to Smith must be disregarded in the considera

tion of the case, for the reason thatit does not appear from the
evidence that the property described in said mortgage was in
existence at the time Smith was chargeable with notice of the

junior lien.
What notice, if any, did the appellant have of the rights
of the junior creditor? It will not do to say that the Martin

judgment furnished suicient notice. Chancellor Kent, in
Obeeaboro v. Millard, supra, says:- If the judgment cred
itor in this case had given notice to the owner of the rst
mortgage, before the arrangement and discharge took place,
of the equity which he claimed and expected, I might proba
bly have been inclined to have stayed to a certain extent the
operation of a second mortgage. But there is no evidence or
even ground for presumption, that either Marvin or Millard,
the owners of the mortgages, knew of the existence of the
judgment when the arrangement was made and carried into
effect. T/my were not bound to searhfor the judgment, and
the record was no c01zstructive notice to them-,' and as this rule
of substitution rests on the basis of mere equity and benevo
lence, the creditor who has thus disabled himself from making
it, is not to be impaired thereby, provided he acted without
knowledge of the others rights, and with good faith and just
intentions, which is all that equity in such case requires.
The other debtor and sureties, to adopt the observations of
Pot/tier, might, as well as the creditor, have taken care of the

right of hypothecatiou which he has lost; they might summon
him to interrupt at their risk the third purchasers, or to op
pose the decree. It is only in the case in which they may
have put the creditor in default that they may complain that
he has lost his hypothecation.
The answer to appellants bill alleges that the lien of com

plainant on the goods of the debtor under the chattel mortgage
was lost by her neglect, although she was notied by Browne
(the purchaser of the land sold under the Martin judgment),
to collect the same and to take possession of the property
and sell the same in discharge of the debt.
105
The nature of the notice referred to is not shown in this

answer, nor in the cross-bill of O'Neil; but Eyster, a witness
for appellees, discloses somewhat the character of this notice,
by stating that in the fall of 1871 Browne led a bill in chan
cery to set aside certain deeds, and to redeem the property
from the alleged mortgage; that Smith, Duggan and Ross
were made defendants to that bill.
Counsel for appellees, in their printed briefs, refer to this

bill, set out its contents, and state that service was had, an
answer led by Smith, one of the defendants; that the bill was
led September 23,1871; that on February 7, 1872, Browne
sold the land to the wife of the debtor Duggan, and that after
wards, April 6, 1872, the bill was dismissed, and counsel for
appellees thereupon insist that Browne thus notied appellant
that he was then the owner of the land, and that she must rst
sell the personal property under the chattel mortgage before

she could claim the benet of her lien on the land.
Counsel on both sides stipulate that this bill of Browne, and
the proceedings thereon, together with certain other matters of

evidence, may be considered by this court, the same as though
incorporated in the record, from which such evidence was by

oversight omitted, as the stipulation alleges; but since the
stipulation was led in this court in the rst instance, we can
not consider it under our former rulings in the cases of Mo
lanclin v. U. C. R. R. U0. 3 Col. 173, and Capelli v. City qf

Denver id. 235, where it is held that this court cannot consid
er matters ofevidence upon stipulation merely, and not prop

erly bronght up by the record. We are therefore, without any
record evidence of what this Browne bill contained, other than
we have mentioned; we do not know judicially what proceed
ings were had upon said bill, and are therefore unable to de
termine whether the decree of dismissal upon the bill and an
swer was not resjudicata as to the matters therein set up and

answered, and whether the same might not be pleaded in bar
of the rights now set up by appellee ONeil, who claims under
Brownes title; or whether the bill contained the necessary
106

averments to constitute it such a notice to appellant as is now

claimed for it; or whether, if sufficient, the dismissal of the
bill was not a withdrawal of notice to appellant of whatever

rights were then claimed by Browne, and of whatever duty
appellant could be chargeable with, under proper notice.
Certain it is, however, that the bill of O'Neil is defective in
two particulars:
Rirst: In not alleging against the appellant such affirmative
or conclusive and intentional acts of negligence, resulting in
the loss of the chattel fund, as would constitute ground for
subrogation of the junior creditor to the prior right of the
appellant to the other fund.
Second: If the Browne bill is relied on as the notice by
which the appellant is to be bound, then it should have been
shown by the answer or cross-bill of appellees that the Browne
bill contained the proper averments to constitute it a sufficient
notice, to wit: that at the time of the filing of the Browne
bill, the goods and chattels which were the subject of the chat
tel mortgage were then in existence, were intact and available
as a fund from which appellant could realize all or a part of
her debt for which such fund was a security. 2 Lead. Cas. in
Eq. 238.
Without this, there could have been but one fund at the
time the question relating to it was raised, and hence the doc
trine contended for would have no foundation in fact.
Neither the answer to appellant's bill nor the cross-bill charges

such acts of negligence against appellant, nor alleges such no
tice of her responsibility and duty under the status of the two
funds and the several rights of the creditors respecting the same,
as are sufficient to cast upon her a liability for the alleged dis
sipation and loss of the fund created by the chattel mortgage.

There is, therefore, no equity for the decree of the court
below to rest upon, and it will be reversed, and the cause re
manded, with leave to both parties to amend their pleadings,
if they or either of them so elect, without prejudice to the
testimony already taken.
Decree reversed.
DECEMBER T1-Jim
i\
oo \1 E9
107
Charles v. Eshleman et al.
CHARLES v. Esrrnnmsn ET AL., Exacurons.

1. Under the statute (Gen. Laws section 2,918), claims against an estate
may be tried in the county courts before a jury, and without formal pleading,
as in ordinary trials before a justice of the peace.
2. The fact that a county judge is permitted to exercise an equitable ju
risdiction in the allowance of claims does not deprive litigants of the right
of submitting facts to juries, at least in actions not purely equitable.
3. If there be partnership property, and also separate property of a de~
ceased partner, the partnership debts are to be paid out of the proceeds of the
joint estate, and the individual debts out of the proceeds of the separate es
tate. ln the exercise of equitable jurisdiction in the allowance of claims,
county courts are strictly restrained from infringing on this rule.
4. The reason assigned for the distinction between the ordinary commer
cial partnership and a mining partnership, and for limiting the powers of the
partners of the latter class, is that a mining partnership is not foimded on the
delectus per-some, whereas the other class is.
5. The powers of members and managers of mining partnerships are
limited to the performance of such acts, in the name of the partnership, as
may be necessary to the transaction of the business, or which is usual in like
concerns.
6. The employment of counsel to litigate the title to the mine does not
come within the limited powers vested in a mining partner. But this rule
dozs not apply to incorporated mining associations, nor to partnerships
formed under the statutes.
7. The rule is that whenever a party undertakes to do an act as the agent
of another, if he does not possess any authority from the principal therefor,
or if he exceeds the authority delegated to him, he will be personally re
sponsible to the person with whom he is dealing on account of his principal.
8. Ratication can only be effectual between the parties when the act is
done by the agent avowedly for or on account of the principal, and not when
it is done for or on account of the agent.
Appeal from the County Court q/'Jq'era0n County.

THE facts are sutciently stated in the opinion.
Mr. J. Q. Cimnnrs, appellant pro se.
Mr. R. S. Mormrsorv, for appellee.
BECK, J.
The appellant was employed in luo proiessionsl
108
SUPREME Coum or COLORADO.

capacity as a lawyer by the deceased, John H. McMurdy, to

manage and attend to certain suits involving the title of the
Dives mine at Georgetown.
McMurdy was one of the owners
of the mine, and was, at the time of employing appellant, act

ing as its manager. After his decease, the professional ser
vices rendered not having been paid, appellant presented his
account therefor to the County Court of Clear Creek County
and caused it to be led as a demand against the estate. Ob
jections to its allowance were made by the executors, and the
issue of fact as to the liability of the estate, was submitted to
a jury, who returned a verdict for the appellees. A new trial
and cliange of venue were granted, and the caus' removed to

the County Court of Jefferson County, where the issues were
again submitted to a jury, against the appellants objections,
and a. like result followed, the jury returning a verdict for the
estate.
The rst error assigned is that the court erred in permitting

the cause to be tried by a jury. There was no error in this.
The statute provides that the manner of exhibiting claims
against estates shall be by ling in the county court the ac
count or instrument of writing, or an exemplication of the
record, whereon such claim is founded.
Formal pleading
shall in no case be required; but the issues sh-all be formed,

heard and determined in the same manner as in actions before
justicesof the peace. (General Laws, section 2,918.)
It will be perceived that the statute provides the mode of
trial, as well as the formation of the issue. Section 1,506 pro
vides, that at any time before evidence is given in any suit
before a justice of the peace, either party, upon advancing the
jury fees, may demand to have the cause tried by a jury, etc.
It was evidently the intention of the legislature to adopt the
same practice in respect to trials of issues of fact, in the county
court, when sitting for the purpose of the adjudication of
claims against the estate ofdeccased persons. as in ordinary
trials before justices of the peace, and the fact that the court is
permitted to exercise an equitable urisdiction in the allowance
109
of claims, doesgnot deprive litigants of the right of submitting

questions of fact to juries, at least in actions not purely equi
table.
The other errors assigned relate to the conduct of the trial,
thegiving and refusing instructions, and in overruling appel
lants motion for a new trial.
The appellants claim, as presented, was for a sole employ
ment by McMurdy ; the defense interposed was, that it was a

general employment in the name and for the joint benet of a
partnership, and concerning the partnership property ; and as
such the estate was not liable, but that the claim must be pre
sented againgt the survivors only.
The appellant controverts
the proposition that it was a joint employment, but insists

that if it was, the county court would have jurisdiction to
allow the claim as an equitable demand against the estate of
the deceased, on the principle that partnership debts are joint
and several in equity.
-
The English rule is, that all partnership contracts are to be

held joint and several in equity, and that upon the death of a
partner a creditor of the rm may proceed at once in equity
against the estate of the deceased, whether the rm or the surviv
ing partners be solvent or otherwise ; but it requires that the

surviving partners be made parties to the bill, because they are
interested in taking the account.
Parsons on Partnership,
Sec. 448; 1 St0rys Eq. Jur. 676.
This rule has been greatly modied by statute in this coun

try. Our statute upon the subject of wills, executors and ad
ministrators is similar to the statute of Illinois on the same
subject, its main provisions being a transcript of that statute

\Ve may, therefore, look into the decisions of the courts of
that State for rules to guide us in the construction of this
statute. The rule there adopted is, it there be partnership
property and also separate property of a deceased partner, the
partnership debts are to be paid out of the proceeds of the
joint estate, and the individual debts are to be paid out of
the proceeds of the separate estate.

Grimes, 26 Illinois, 405.
Pwhl/nznfa En/'8, etc. v.
110

It will be observed, that while it is held that courts of pro

bate may exercise an equitable jurisdiction in the allowance
of claims against estates of deceased persons, such courts are

strictly restrained from infringing on the foregoing rule.
In the case of Moline Water-Power and rllanufaaturing

Company v. Webster, 26 Ill. 239, OhiefJustice Oaton says:
We wish to be distinctly understood, that no claim should
be allowed against the estate for a partnership debt, till it is
shown that all the partnership assets have been exhausted.
Till this is done, no equitable claim ever arises against the es

tate.
See also, Pa-hlmanfs Ezrs v. Graves, supra, p. 408.
The appellants position, therefore, that if the claim should

be found to be a partnership debt, and not the individual debt
of the testator, the probate court had jurisdiction to allow it
in this proceeding as an absolute demand against the estate,
cannot be sustained. In order to save the bar of the statute,
however, in the event that the partnership assets in any case
should prove insutlicient to liquidate the partnership debts, it
would be proper to have the claim exhibited, and led in the
county court against the estate, within the time and in the
manner required by statute.
The whole testimony in the cause, however, falls far short
of establishing that an ordinary partnership existed between
Mchlurdy and the other persons named by the witnesses as
interested in the Dives mine. It does appear that the
mine was owned as tenants in common by the deceased and
other persons. According to the testimony of Hamill, the
owners were McMurdy, \Vilcox, Mareld, Sowerly, Payne.
Story, Perdeaux, Jackson and Logan, and he says some others
claimed to be owners. The interests of the several parties
appeared to have differed, both in nature and extent, some
owning undivided interests jointly, while others owned adjoin
ing claims upon the lode; thus Mclllurdy owned one-third of
the
mine,233
andfeet,
Payne
andLogan
Sowerly
while Story
owned
and
100one-fourteenth,
feet. A This witness
says
Mchlnrdy acted as manager, but thinks he had no authority
\
Dncsnnna TERM, 1879.
111
to act from Payne, Sowerly and Wetherell. No contract vi

partnership was proven. In such case it would not be within
the scope of the authority vested in a mere manager of the
working of the mine, although himself an owner, to employ an
attorney in the name of all the proprietors, to prosecute and
defend litigations concerning the title of the property. With
out special authority for that purpose, such a contract, if
made, would not bind his co-owners.
The evidence does not warrant an inference that an ordi

nary partnership relation existed between the several proprie
tors. At most, it shows what has been denominated a mining
partnership; a relation that would not authorize one member
to bind the partnership by a contract of this nature without
the assent of the individual members. A mining partnership
is held to exist where the several owners of a mine co-operate
in the working of the mine, and it is held that this relation is
governed by many of the rules relating to ordinary partner
ships, but differs therefrom in many important particulars; as,
for example, a member may assign his interest without the
consent of his co-partners, and the act does not work a disso
lution of the partnership; the person to whom the interest is

assigned becomes a member of the company, and it is not nec
essary that the other members consent thereto. Neither does
the death of a member dissolve the partnership. Another
peculiarity is that a partner has not the power to bind his as
sociates by engagements with third persons, to the extent that
a member of a trading or commercial rm may do. The la\v
does not imply any authority to a member of a mining part
nership to execute a promissory note, or to draw or accept a
bill of exchange.
The reason assigned for the distinction between the ordinary
commercial partnership and a mining partnership, and for
limiting the powers of partners of the latter class, is, that a
mining partnership is not founded on the delectue persomr

whereas the other class is: New members come into a mining
association against the wishes of other members, and it is held
11:3
SUPREME Comrr or COLORADO.
I
that to subject the owners, under such circumstances, to per
sonal liabilities not authorized by them, but contracted, it may

be, by those who became members against their wishes, would
be unjust. For these reasons it is held the powers of members
and managers of such companies are limited to the perform
ance of such acts, in the name of the partnership, as may be
necessary to the transaction of its business, or which is usual
in like concerns. Skillman v. Laclcman, 23 Cal. 200; Dur
ym v. Burt, 28 Cal. 569, and cases therein cited.
It is evident that the act of employing counsel to litigate

the title of the mine, does not come within the limited powers
vested in a mining partner. These observations have no ref
erence to mining associations incorporated, nor to partnerships
formed under the provisions of the statutes. N0 doubt a part
nership may be formed for mining purposes, that would pos

sess all the elements of a commercial partnership, and which
would subject its members to the same rules and liabilities,
hut there is no testimony in the record that such a partner
ship relation existed in this case.
This being so, the instructions given on the part of appellees
were not warranted by the testimony, and were calculated to
mislead the jury. By these instructions the jury was advised
in substance, that if the appellant was employed in behalf of
the owners of the Dives mine, or to act as attorney for the
Dives lode generally, that no recovery could be had. This was
manifest error. It was the province and duty of the jury to
inquire whether McMurdy was authorized by the owners to
employ counsel in their names, as well as to nd whether he
had in fact assumed to do so; and the jury should have been
so informed. The force of the instructions as given, is that if
he assumed to employ the counsel for the owners, the latter,
and not the estate of the deceased, is bound, thus wholly ignor
ing the essential element of a binding contract, the authority
of the party to make it.

If McMurdy assumed, without authority, to contract for the
company, he, and not the company, became bound, and in
113
Char es v. Eshleman et al.
such case the claim should have been allowed. The rule is
that whenever a party undertakes to do any act as the agent
of another, if he does not possess any authority from the prin
cipal therefor, or if he exceeds the authority delegated to him,
he will be personally responsible to the person with whom he
is dealing on account of his principal. Story on Agency,
Sec. 264.
'
There was some testimony tending to show that the owners
of the mine ratied the employment of appellant.
Such tes
timony would only be matcrial if the hiring was in the name

of the owners, for a ratication can only be effectual between
the parties when the act is done by the agent avowedly for or
on account of the principal, and not when it is done for or on
account of the agent. Story on Agency, Sec. 251.
\Ve nd but little in the testimony to warrant the conclu
sion that deceased assumed to contract for any one but himself
He appears to have been thus understood by appellant and his
clerk, at time of the employment, and the retainer and fees
were charged against him individually. If he contracted in
his own name, appellant would not be bound by a ratication
by the company, if proven.
In order to make out the defense in this case, the burden of
proof was on the appellees to establish by testimony the joint

character of the debt, and the authority of the deceased to
contract it; or that it was contracted on behalf of the owners
of the mine, and subsequently ratied by them. In this they
have signally failed, and the verdict is not only against the
weight of evidence, but is wholly unwarranted by it, and should
have been set aside.
For these errors the judgment must be reversed and the

cause remanded.
Judgment reversed.
114
Charles et al. v. Eshleman.
Dickson v. Moffat.
CHARLEs ET AL. V. EscHLEMAN, EXECUTOR.

Appeal from County Court of Jefferson County.
BECK, J. This cause is similar in all essential particulars to
the case of John Q. Charles v. David G. Eschleman, surviving
executor, etc., decided at the present term, and involves a con
sideration of the same questions presented and decided in that
CaSe.
For the errors of law intervening upon the trial, and men
tioned in the opinion in the latter cause, the judgment of the
court below will be reversed, and this cause remanded for a
new trial.
Judgment reversed.
DICKSON V. MOFFAT.
1. Where one contemplates entering into possession of the lands of
another to occupy for use, and is informed by the lessor that he can do so
upon terms stated, or for a reasonable compensation, and the party there
after makes entry, and occupies and uses the land, it is a good acceptance of
the terms proposed, and he will become thereby bound under an implied
contract to pay the sum named, or if no sum is named then such price as the
use was reasonably worth.
2. When the trial is to t e court, the finding will not be dist.rb d unless
m nifestly against the weight of evidence.
Appeal from District Court of Summit County.

Mr. J. W. HoRNER and Mr. R. D. THOMPsoN, for appellant.
Mr. C. C. Post, for appellee.
115
Dickson v. Moffat.
STONE, J. The appellee had judgment in the court below.

The case was tried by the court upon agreement of the parties,
without the intervention of a jury, and is brought up by appel
lants, who were defendants in the court below. The principal

error assigned is that the ndings and judgment of the court
are against the weight of evidence in the case. Plaintiff sued
to recover, as for rent, the value of the use and occupation by
defendants of certain placer mining claims. There was evi
dence that before defendants entered upon the ground to work,
they were informed by plaintiff s agent that they would have
to pay $300, if they worked the claims of plaintiff; that the

defendants objected to the price named, but thereafter went
upon the ground and worked during that mining season, taking
therefrom a large amount of gulch gold; that in the fall, when
they settled up with the plainti"s agent, with whom they
had been working as partners upon several claims in connec
tion with the claims of plaintiff, the defendants refused to pay
the $300 then demanded for the use of plaintiff s ground.
Upon the hearing, the court, as appears by the record, found:
First. That defendants, jointly with one Michael L. Coat
ney, worked certain mining claims, the property of the plain
tiff, to wit: No. 8 in 5th tier, and No. 7 in 6th tier, below dis
covery on west side of Gold Run, Union Mining district,
Summit county, during the mining season of the year 1874.
Second. That said Goatney was, at and before the said work
ing, the duly authorized agent of said plaintiff; that prior to

said work being done, Coatney informed defendants that if
said claims were worked by them they should pay $300 for the
use of said claims.
Third. That no agreement was reached at the time of this
conversation, but that the defendants, by proceeding to work
said claims, by not claiming they had a previous contract with
Coatney to work the property on other terms, by admissions
to witnesses Thorne and Peabody, conceded the demand to pay
plaintiff the sum of $300 as the defendants proportion for
the use of said premises; and that defendants have failed
116
Dickson V. Moffat.
to prove that the prior contract relied upon by them included

these claims, unless they should pay a consideration therefor.
Fourth. That in July, 1871, defendants and said Coatney
became partners, to preempt and work five certain claims in
vicinity of plaintiff's claims, to share profits and expenses
equally, and that the two claims of plaintiffs above men

tioned, with three others of plaintiffs claims, were to be in
cluded in the partnership arrangement, on same terms, except
that a reasonable sum was to be paid plaintiff for use of his
claims, but no sum was then mentioned.

Fifth. That said copartnership arrangement was not in
writing, but was carried out, and all expenses and profits shared
equally between said parties named, including profits from
claims of plaintiff, but that defendants have paid nothing,
either to plaintiff or his agent, for their share of the use of
plaintiffs claims, and that defendants are jointly liable
therefor.
Sixth.
That the reasonable value of the use of said claims,
while occupied by said parties, is the sum of $500, two-thirds

of which defendants are liable to pay.
Seventh.
The court therefrom finds that defendants are
justly indebted to the plaintiff in the sum of $300.

It is contended by counsel on behalf of the appellants, that
they never accepted the proposition to pay the sum of $300,
or any other sum, for such use of plaintiff's ground.
Where one contemplates entering into the possession of the
lands of another, to occupy for use, is informed by the lessor
that he can do so upon terms stated, or for reasonable compen
sation, and the party thereafter makes entry, occupies and uses
the land, it is a good acceptance of the terms proposed, and he
will become thereby bound, under an implied contract, to pay
the sum named, or, if no sum is named, then such price as
may be established by evidence to be what the use was reason
ably worth.
It is also insisted, that if the evidence shows any contract at

all, it was a contract for the sale of the claims in question to
117
Dickson v. Moffat.
appellant. This theory is inconsistent with the testimony of

appellants themselves: that they received no deed for the prop
erty and had no title therein, and that they did not, therefore,
sell the claims when they sold their own property, and that
they never paid plaintiff anything, either as purchase price or
rent. The contract was substantially a lease.
It is further contended that appellants were entitled to the
use of the ground during the year they worked it, 1874, by
virtue of an alleged verbal contract made with plaintiff's agent
in 1871.
But if such verbal contract can be considered as
binding under the statute, beyond the period of one year from
the time it was made, this, nevertheless, cannot avail the ap
pellants, since under this agreement they were to pay a reason
able compensation for the use and occupancy of the plaintiff's
claims, and in this respect the evidence supports the judgment.
The contract was a very loose one, and of such a character as
should never be entered into without a full understanding by the
parties, and committed to writing; but from a review of the

whole evidence, we are satisfied the findings of the court be
low and judgment thereon are fairly sustained by the testimony,
and under the familiar rule laid down in Barker v. Hawley,
| 4 Col. 317, the finding will not be disturbed unless manifestly
against the weight of evidence. The judgment will be af

firmed.
Judgment affirmed.
Justice BECK, before whom, as District Judge, the case was
tried below, did not sit in this case.
118

Hawley v. Barker.
HAWLEY v. BARKER.
Under the statute (Gen. Laws, page 513, section 29), interest is not recover
able upon a verdict.
Error to District Court of Arapahoe County.

Mr. WILLARD TELLER, for plaintiff in error.
Messrs. BUTLER, WRIGHT & KING, for defendant in error.
ELBERT, C. J. In this case there was a general demurrer to
the complaint; the demurrer was sustained and judgment

entered thereon. The plaintiff brings the case to this court by
writ of error. The complaint shows that on May 28, 1875, the
plaintiff recovered a judgment against the defendant in the
District Court of Gilpin County, in an action on a written in
strument for the payment of money, for the sum of $1,136. A
motion for a new trial was made by defendant, and remained
undisposed of until March 26, 1877, when it was denied, and

judgment entered on the verdict; the case was appealed to
this court and judgment affirmed. The judgment was for the
exact amount of verdict, and the present action is brought to
recover interest on the amount of the verdict from the date of
its rendition up to the time of entry of judgment thereon.

There is but little harmony among adjudicated cases upon
the subject of interest. It is defined to be the compensation
which is paid by the borrower of money to the lender for its
use, and generally by a debtor to his creditor, in recompense
for his detention of the debt. (Bouvier Law Dic.)
Again, it is said to be a legal and uniform rate of dam
ages allowed in the absence of any express contract, when pay
ment is withheld after it has become the duty of the debtor
to discharge the debt. Minard v. Beans, 64 Pa. St. 411.
119
Hawley v. Barker.
In Colorado, interest is regulated by statute, and in this
case the plaintiff claims to recover under the provisions of

section 2 of the Statutes (Gen. Laws, p. 513). The section is
as follows:
Creditors shall be allowed to receive interest when there
is no agreement as to the rate _thereof at the rate of ten per
cent. per annum for all moneys after they become due, on any
bond, bill, promissory note, or other instrument of writing, or
any judgment recovered before any court or magistrate author
ized to enter up the same within this State, from the day of
entering up said judgment until satisfaction of said judgment
be made; likewise on money lent; on money due on the set
tlement of account from the date of the last just entry that
may have been made in account; on money received to the
use of another and retained without the owners knowledge,
and on money withheld by an unreasonable and vexatious

delay.
In the case of Sammie v. Clark at al. 13 Ill. 544, substan
tially the same section was under consideration. Mr. Justice

Trumbull says: It is a rule in the construction of statutes
that the expression of one thing is the exclusion of another,
and it may well be insisted when the legislature has enumer
ated a variety of cases in which creditors shall be allowed to
receive interest, that it was not their intention to permit them
to demand it in the cases not enumerated. Dwarris on Stat
utes, 713; King v. Cunningham, 5 East. 478; The Warden

of St. Paul v. The Dean, 4 Price. Interest is not given by
the common law for a failure to pay money when it is due,
unless the parties have so agreed.
Sec. 6.
Hawkins, book 1, Ch. 29,
Renns Glass Factory v. Reid, 5 Cow. 608; Madison
County v. Bartlett, 1 Scam. 70.
It follows from these posi
tions, that interest can only be recovered in this State in ac

tions purely em contractu, and where there is nothing tortious
in the character of the indebtedness in the cases specied in
the statute, or where there has been an express promise to pay
interest or such a promise can be inferred from the circum
120

Hawley v. Barker.
stances, the particular mode of dealing adopted by the parties,

or the usage of the trade in which they dealt.
We accept this construction as the law. If, therefore, the
plaintiff can recover interest on his verdict, it must be in vir
tue of its express or implied enumeration in the section quo
ted, and to this inquiry the controversy is narrowed.
The plaintiff bases his right to recover thereunder upon
three grounds:
First. That the verdict is an instrument of writing within
the meaning of the section.
Second. That it is a settlement of account within the mean
ing of the section.
Third. That in this case it may be treated as money
withheld by an unreasonable and vexatious delay, within the
meaning of the section.
Without reference to the question whether this can be re
garded as an action ea: contractu, we will consider the points

made in their order.
To the rst proposition it may be replied that the term in
strument of writing, as here used, has a denite legal mean
ing, which excludes a. verdict as something essentially different.
An instrument of writing implies an agreement or contract
which it contains, and of which it is the memorial.
(Bouvien)
A verdict is the unanimous decision made by ajury and reported

to the court on the matters lawfully submitted to them in the
course of the trial of a cause. (Bouvier.) Nor can a verdict
with any more propriety be called a settlement of account,
which is an agreement by which two or more persons who have
dealings together, so far arrange their accounts as to ascertain
the balance due from one to the other.
Upon such a settlement of accounts, the statute authorizes
interest from the date of the last just entry that may have
been made in account -language that is meaningless when
applied to a verdict. The one is a transaction between the
parties; the other is the result of legal proceedings. Again, a
verdict is not conclusive until nal judgment is entered upon
DECEMBER TERM, 187 9.
121
Hawley v. Barker.
it; until then it is liable to be made nugatory by arrest of

judgment or new trial; until then the issues submitted are not
res judicata, nor can it be relied upon as proof of the facts
found. (Freeman on Judg. Secs. 251, 276.)

The rst and second propositions do violence to legal nomen.
clature. It is manifest that the plaintiff is not entitled to in
terest unless it be under the clause which allows interest on
money withheld by an unreasonable and vexatiousv delay.
At the rendition of the verdict, March 28, 1875, a motion
for a new trial was interposed by the defendant, which re

mained pending and undisposed of until March 22, 1877, when
the motion was overruled, and judgment entered on the ver
dict. Why the motion was not disposed of sooner does not
appear. The defendant had the right to contest the verdict
in all the modes prescribed by the law.
If there was delay, it
is to be regarded as the laws delay, and not his.
Under the
statute the duty to pay and withholding must co-exist.
During the interim between verdict and udgment, the law de

volved upon the defendant no duty to pay, and there could be
no withholding by him. The law withheld payment that the
subject-matter of the suit might be heard and determined, if
upon the condition of payment of interest it is not so ex
pressed, and we are not willing to imply in this case that which
cucumbers the right of defense.
In the case of Aldrich v. Dun/mm, 16 Ill. 403, it was held
under a similar statute that to appear and defend a suit is a

right which cannot be construed into unreasonable and vexa
tious delay of payment without impairing the right itself.
The reason assigned is equally cogent, no matter what the form
of action. The delays consequent upon the conduct of a suit
are not within the meaning and intent of the act, and in the
absence of statute cannot be made the subject of either inquiry
or penalty. That it might be a proper subject for legislative
action is aside from the question. Undoubtedly a nisi pri-us
court may, pending litigation and in a proper case, impose
terms upon a party asking delay, but this is not because of any
122
SUPREME Counr or Cononsno.

Hawley v. Barker.
power under this statute to allow interest, but in virtue of its

inherent power to make subject to the law all necessary rules
for the conduct and dispatch of its business.
In the case of Aelsey v. llurp/ty, 30 Pa. St. 340, Mr. Jus

tice Thompson says:
While the question of indebtedness, under all tho ascer
tained facts in the case is under consideration in the courts, as
is the case on a motion for a new trial, the contract of the
debtor is suspended. The case is in gremio legis, and is pre

sumed to be held under consideration by the ministers of the
law. The debtor can neither pay nor tender so as to avail
anything, even if disposed to abandon the contest. It is em
phatically and in truth the laws delay. It is an incident in
separable from the civil machinery that the law puts in opera
tion to ascertain the truth between man and man, and until
the process be gone through with, it presumes that errors may

exist, and hence not only indulges such delays occasionally,
but sometimes brings out of them the nest achievements of its
mission. Consideration is as necessary in the administration
of justice as evidence, and every judgment formally entered,
recites that it is considered and adjudged.Considered rst,

and adj ndgcd afterwards.
p
'This is the purpose and object of motions for new trials
where there is doubt, and if permitted to be diverted from

this just purpose it is more the fault of the administration of
the law than of the law itself, but it cannot be said to be the
fault of the party. While, therefore, the very essence of the
contest is being considered, and the result is in dubio, it is
easy to see that no duty rests upon the party ultimately liable
to pay, so long as that condition lasts, and of course he
ought not to be obliged to make compensation to the opposite
party, because it exists and continues for a time. That the
proceeding is still immature, when a verdict is rendered, is
apparent, when we consider that it is in a condition on which

no process can issue, and on which no action can be maintained,
and is no lien on either real or personal estate. For these and
DECEMBER T1-mm, 1879.
123
Fuller et al. v. Swan River Placer Co.
other reasons, neither the common law of England, nor the

practice there or with us, have sanctioned the collection of in
terest as incidental to a verdict during the pendency of a mo
tion for a new trial.
Wliether, if the interest were recoverable on a verdict, it
could be recovered in an independent action, is a question not

raised by counsel, and we neither discuss nor decide it. The
demurrer to the complaint was properly sustained. The udg
ment of the court below is airmed, with costs.
Ajirmell.
~_
FULLER ET AL. v. SWAN RIVER PLACER Co.

A joint appeal by all the defendants allowed upon the condition of ling a
joint bond, must be prosecuted by all.
-1.
Appeal from District Court qf Jqferson County.
MOTION to dismiss appeal.

Messrs. \VELLs, Smru & Macon, for appellee.
Messrs. TELLEB & Rune, contra.
Pan Ounmsr.
The defendants below jointly prayed an ap
peal, which Was granted upon condition that they le their
appeal bond within a time limited. The bond led is not a

compliance with the conditions; it is executed by a part of the
defendants only.
Two who joined in the prayer for the ap
peal do not execute the bond.

In the case of Andre v. Jones, 1 Col. -189, it was held that
a joint appeal of two could not be prosecuted by one only.
The statute authorizes one of several defendants to remove a

cause to this court by appeal, and in such case he is permitte.
124
SUPREME Comvr or COLORADO.

Cody v. Filley.
to use the names of all the defendants if necessary.

Laws 1879, p. 226, Sec. 30.)
(Sess.
This, however, does not affect the rule that a joint appeal by
all the defendants, allowed upon the condition of ling a joint
bond, must be prosecuted by all. Andre v. Jones, 1 Col. 489;

Wrztson v. Thrall, 3 Gilm. 69; Johnson v. Barber, 4 Gilm. 1.
It is not necessary to notice the other objections.

The motion to dismiss is allowed.
Dismissed.
~.
Conv v. FILLEY.
Interest on a verdict is not recoverable.

Mr. WILLARD TELLER, for the appellee.
Messrs. BUTLER, \VmenT and Knvo, contra.
ELBERT, C. J. The statement having been heretofore

stricken from the record, nothing remains but the record prop
er, upon which no error appearing, the judgment of the court
below must be airmed.
The appellee interposes a motion for judgment in this court
for interest on the verdict from its rendition to the entry of
judgment. Under the decision in the case of Hawley v. Bar
ker, decided at the present term, interest on a verdict is not
recoverable, and the motion must be denied.
The judgment of the court below is airmed with costs.

Armed.
125
Haas et al. v. Board of County Commissioners, etc.
Haas ET AL. v. Beam) COUNTY COMMISSIONERS or

PUEBLO COUNTY.
The rules of this court require plaintiffs in error and appellants to assign
errors at the time of ling the transcript of the record.
Appeal from District Court of Pueblo County.

PER CURIAM.
The motion to dismiss this appeal must be
allowed for failure of appellants to assign errors in compliance

with the rules of this court. These rules require appellants
and plaintiffs in error to assign errors at the time of ling the

transcript of the record, and provide that the appeal or writ of
error may be dismissed for non-compliance therewith.

N0 errors were assigned, either at the time of ling the
transcript or since, and in the present condition of the record
there is no issue for us to decide. An assignment of errors is
as indispensable in this court as a declaration orcomplaint in

the court below.
'
In the case of Williston v. Fisher et al. 28 Ills. 43, Chief
Justice Oaton, in ruling upon the same point, used the follow
ing language: An assignment of errors in this court per
forms the same oice as a declaration in a court of original

jurisdiction. It would be just as regular and proper for the
circuit court to render a judgment in a cause where there is
no declaration, as for this court to airin or reverse a udgment
where there is no assignment of errors. See Powell on Ap

pel. Proc. page 277, Sec. 21.
The motion will be allowed and the appeal dismissed, with
costs.
Appeal dismissed.
STONE, Justice, having been of counsel in the court below,
did not participate in the decision.
126
Wike et al. v. Campbell.
WIKE ET AL. v. CAMPBELL.

1. It is well settled that papers filed in the progress or trial of a cause at
nisi prius, and not intrinsically parts of the record, cannot become such by
being incorporated therein.
2.
The provisions of the R. S. establishing the mode of procedure in
taking and prosecuting appeals from judgments of justices of the peace, re

main in force, but under the act of March 14, 1877, such appeals lie to the
county court, instead of the district court.
Error to County Court of Boulder County.

Mr. PLATT RogFRs, for plaintiff in error.
Mr. Richard H. WHITELY, for defendant in error.

BECK, J. The plaintiff in error sued out a writ of attach
ment before a justice of the peace of Boulder county against
the goods and chattels of Partridge & Moore, copartners, and

caused the same to be levied upon certain articles of personal
property, as the property of said copartners.

Samuel J. Campbell, defendant in error, claiming to be the
owner of the attached property, filed his affidavit before the
Justice, setting forth his claim to the property under the pro
visions of section 12 of the Attachment Act of 1879, Sess.
Laws, p. 21.
Upon the trial the Justice found the issues against the de
fendants, Partridge & Moore, and rendered judgment against
them for the amount of the plaintiffs demand. Upon trial
of the issue joined as to Campbell, it was adjudged against
him, the court finding that Partridge & Moore were the owners
of the goods and chattels claimed, and that they were subject
to the writ of attachment.
Appeals were prayed from the judgments of the Justice by
127
Partridge & Moore, and also by Campbell, to the County

Court of Boulder County, but the only appeal in fact taken
was that prayed by Campbell, the other parties failing to exe
cute an appeal bond. Upon trial de no'v0 in the county
court, defendant in error recovered a judgment in his favor,
to reverse which Wike and Ellison bring this writ of error.
It is assigned for error, among other things, that the county
court erred in denying the motion of plaintiff in error to dis
miss Campbells appeal, and that it erred in permitting him,

against their objections, to le a new or amended appeal bond.
There is no bill of exceptions in the case, and while the writ
ten motion to dismiss, as well as the original and amended bonds,
have been copied into the record by the clerk of the court be
low, it is well settled that papers led in the progress or trial

of a cause at nisi prius, and not intrinsically parts of the
record, cannot become such by being incorporated therein.
They are still extrinsicare do hors the recordand can only
be made part of it by a bill of exceptions. This rule embraces
aidavits, bonds, stipulations of parties, the contents of written

motions, as well as all other papers belonging to the les which
are not intrinsically parts of the record. Filley v. Cody, 4
Col. 542. Anderson v. Sloan, 1 Col. 33, and cases there cited ;
Smith v. Wilson, 26 Ill. 187_; Eggleston. v. Buck, 24 Ill. 262;
Douglass v. Parker, 43 Ill. 146; Wilson v. McDowell, 65 Ill.

522. In the absence ofa bill of exceptions, therefore, the con
tents of the appeal bonds led by Campbell, and the grounds
assigned in the motions to dismiss the appeal, are not before
us in such manner that we can look into them for the purpose
of determining the regularity of the appeal, or whether the
county court acted properly or otherwise in denying the mo

tions to dismiss and in allowing defendant in error to le an
amended appeal bond.

The same observations apply to the supposed appeal of Part
ridge & Moore; but since the record fails to show that any
appeal was taken by them, or that the county court adjudicated
the cause as to them, there is no cause pending here as to these

parties.
128
SUPREME Cover or Cononano.

In this state of the record, the only question which properly

arises for our consideration is, whether the county court had
jurisdiction to entertain the appeal taken by defendant in error,
and to grant him a trial de nova.

It is contended by counsel for plaintiffs in error, that in the
present condition of our statutes upon this subject, no provis
ions exist for perfecting and trying appeals of this nature.

By Section 38 and succeeding sections of Chapter 50, R. S.,
appeals from judgments of justices of the peace lay to the dis
trict court, and the trial was rle nova.
All necessary regulations for perfecting and prosecuting such

appeals are incorporated in this act, and Section 43 extends the
right to one or more plaintiffs or defendants, without consent
of the others. The rst State Legislature, by Section 3 of an
act entitled An act in relation to the jurisdiction of justices
of the peace, and the practice in justices courts, approved
March 14, 1877 (General Laws, Sec. 1,599), provides as follows:
All appeals from judgments of justices of the peace, both in
civil and criminal matters, shall be taken to the county court
of the same county, and no appeal shall lie from ajudgment
of a justice of the peace in any cause, civil or criminal, to the
district court.
The last section of this act is as follows: All acts and parts
of acts inconsistent with this act are hereby repealed.
Referring to the General Laws (1877), we nd chapter 50,
R. S., copied into this volume as a portion of chapter 55, the
section before alluded to being modied so as to read county
court instead of district court in all instances. The
word district has been stricken out wherever it occurred,
and the word county inserted, which are the only changes
made in this particular. As the chapter has been transcribed
and now appears in the general laws, appeals lie to the county
court, and all necessary regulations exist for rendering them
effectual. But the authority thus to modify the former law

and to compile the statutes on the subject in their present
shape is questioned.
129
The general laws were compiled and the modications com

plaiued of were made by the rst Secretary of State after the
adoption of the constitution, under the provisions of an act

approved March 22, 1877, requiring him to prepare or cause
to be prepared and printed, all the general laws passed by the
General Assembly; all general laws now in force and not repealed
by this General Assembly, the same to be arranged in a eon
cise and compact form, so as to have all the law upon each
subject arranged together under the same title as far as practi
cable, etc. Section four of this act provided that the secre
tary should make and print wi_th said law! his certicate certi
fying that they were published by authority of the State, and
such certicate so printed should be p'ri1na facie evidence of
the existence of such laws in all the courts of the State. A
subsequent section provided that when the secretary was in
doubt whether any of the general laws found in the former
prints of the statutes, would remain in force after the year 1877,
such laws concerning which he was in doubt, should be printed,
and all laws that he might decide would not remain in force,
should not be printed.
This section concluded with the fol
lowing provision: That the printing, or omission to print

any law, or matter purporting to be law, in any volume
authorized to be issued by this act, shall not operate to revive,
to enact, or to repeal any such law.
It may be conceded that no authority was conferred upon

the Secretary of State by the act just referred to, to change the
phraseology of the prior law regulating appeals from judg
ments of justices of the peace, whether he had or had not
doubts that the same remained in force, and that his duty was
to publish the former act, if at all, as it stood in the revised
statutes, without striking out or inserting any words to make

it conform to the change of forum made by the act of 1877,
or for the purposes of the question before us, it may be con
sidered that the provisions of the prior law were not published
at all by the secretary. In either case, the question for our de
termination is the same, viz.: Do the provisions of the Revised

9
130
Surnnms Couar 01- Conoaano.

Statutes establishing the mode of procedure in taking and

prosecuting appeals from judgments of justices of the peace
remain unrepealed and in force?
In construing statutes the controlling rule of construction
is to arrive at the intent of the legislature. This is to be gath
ered from the act itself, and from the words employed, if pos
sible. Wlien the act is not explicit it is to be gathered from
the occasion and necessity of the law. The previous state ot'
the law upon the subject is also to be considered, for the for
mer law and the designed remedy may be regarded as the
causes which moved'the legislature to enact the new la\v. Pot
ters Dwarris on Statutes, page 184-.
The statutes under consideration being upon the same sub
ject, are in pari materia, and in accordance with the rules of
construction in such case, may be compared and considered
together as one law, for the purpose of arriving at the legisla
tive intent. Sedgwick on Con. Stat. p. 209. The doubt as
to the construction intended to be given the subsequent act in
this case arises from the omission of the framers to insert
therein any provision regulating the practice upon appeals, or
specically adopting or referring to the former practice upon
that subject. It is supposed that by the silence of the act on
the point, the former practice, as well as the forum to which
it pertained, was swept away by the repealing provisions of
the subsequent statute. But comparing together the former
and the latter acts, keeping in view the rules and principles
just mentioned, we are clearly of the opinion that the legisla
ture simply intended to change the appellate forum from the
district court to the county court, and that this was the
only change designed to be made in the former law. In other
words, that the subsequent act was designed to amend the
former act in this single particular. It di l not expressly re
peal chapter 50, R. S., or any of its provisions, and it has
always been held that a repeal by implication is not to be

favored. It is only when a later statute on the same subject
is plainly repugnant to the former, or revises, or fully em
131
braces the whole subject-matter of a former statute, that a

repeal by implication is allowed. Duggan v. Gitti/ngs, 3 Gill.
138.
The acts under consideration are both airmative statutes.
The former prescribes both the appellate forum and the appel
late procedure; the latter act prescribes a different forum,
without any procedure, and contains a negative provision that
appeals shall not be taken to the forum mentioned in the prior
act. That portion of the former act, therefore, providing for
appeals to the district court is inconsistent with the provis

ions of the subsequent act, and to this extent the former act is
repealed. In respect to all other provisions of the two statutes
no conict or inconsistency whatever is perceived, but, taken
together, the acts are consistent and harmonious, and consti
tute a complete remedy. On the other hand, neither act, sep

arately considered, is complete in itself, and neither furnishes
an adequate remedy without the aid of the other.
One has no
forum; the other no procedure. Thus it is apparent that the

construction contended for by plaintiff in error will defeat the
legislative will, for it is manifest that no such result was cou
templated.
It is the duty of courts to so construe statutes, if possible,
as to avoid absurd results not within the evil to be remedied,
and evidently not within the contemplation of the legislature.
People v. Turner, 39 Cal. 370.

Being affirmative statutes, the rule applies in this case, that
such parts of the prior statute as may be incorporated into the
subsequent act as consistent with it, must be considered in

force. Davis v. Fuirburn, 3 How, 515.
Or, treating the subsequent act as an ainendmentof the for
mer act, the rule laid down in Harrell v. Ilarrell, 8 Flor. 46,
is in point, that an amendatory act and the act amended, are

to be construed as one statute, and no portion of either is to
be held inoperative, if it can be sustained without wresting

words from their appropriate meaning.
We see no occasion to hold that the provisions of the Re
132
SUPREME CoUa'r or Conoaano.

vised Statutes relating to the procedure on appeals from jus
tices of the peace shall be inoperative in the present condition

of the statutes; for, by adopting the principles and rules re
ferred to, we avoid all absurd consequences, and reach a. result
consistent with settled rules of construction, and we doubt not,
in strict accordance with the object and intent of the legisla
ture.
It must be conceded that there is a defect of language in the

act of 1877, to express fully the will of its framers, but their
intent being ascertained, the construction adopted falls within
the maxim that a thing that is within the intention of the

makers of the statute is as much within the statute as if it
were within the letter. 9 Bacons Abr. Title, Stat. p. 247.
It is not surprising that the rst State legislature, amid

the onerous and perplexing duties of enacting a body of new
laws and of remodeling the territorial statutes so as to har
monize and adapt their provisions to the requirements of the

constitution, and to the altered condition of things, should
overlook many points essential to the symmetry and perfection
of the work in hand. In consideration of these circumstances
public policy and the demands of justice alike, require that

their acts should be liberally construed to promote the ob
jects contemplated, whenever the legislative intent can be

clearly ascertained, and effect given the same, without violat
ing well-established rules of construction.

In accordance with these views, the jurisdiction of the
county court to entertain and try this ca_use upon the appeal
will be sustained, and its judgment airmed.

Judgment airmed.
133
Meyer et al. v. Binkleman.
MEYER ET AL. v. BINKLEMAN.

1. Attesting and proving a bill of exceptions by aidavits is s. method of
authentication that cannot be resorted to in the absence of neglect or re
fusal of the judge to allow, sign and seal the bill.
2. If appellants negligently postpone all action imtil the last days of the
time limited for signing a bill of exceptions, they cannot ask to be relieved
from the hardships of a temporary absence of the judge from his district.
Appeal from District Court of Custer County.

Mr. W. A. OFFENBAOHEB, and Messrs. BLACKBURN & DALE,
for appellee.
_
Mr. GEo. S. Amms, contra.
PER CURIAM. This is a motion to strike the bill of excep
tions from the record. The bill is attested and proved by aili
davits. This method of authentication cannot be resorted to
in the absence of neglect or refusal of the judge to allow,
sign and seal the bill. The bill, as matter of fact, was never
tendered the judge, but it is claimed that he was absent from
the district on the 18th of July, when the bill was prepared
and ready to be tendered; that this excuses failure to tender,
and authorized the authentication, as in case of neglect and
refusal of the judge.
The order of the court gave the appellants thirty days from
the 20th of June within which to le the bill of exceptions.

The 20th of July being Sunday the limitation expired on the
21st (Code 400). Twenty-seven days of the thirty granted
passed before the appellants employed counsel or took any
steps to pursue their appeal.
The bill of exceptions was not ready for signature until the
18th of July, when counsel being informed that the judge was
absent from the district, no effort was made to tender it.
Orders of this character are supposed not only to give time

for the preparation of the bill, but ample time for the presen
134

Dunn v. Ghost.
tation to the judge wherever he may be in his district. Both

in its preparation and presentation due diligence must be used.
If appellants or their counsel negligently postpone all action

until the last days of the time limited, they cannot, with any
grace, ask to be relieved from the hardships of a temporary
absence of the judge from his district. The neglect is theirs, and
not the judges. Again, if the absence of the judge from his dis
trict would amount to a. neglect or refusal within the spirit of
the statute, the fact of his absence does not suiciently appear
Oounsel states in his aidavit that he was so informed, but
that such information was correct, we have no evidence; so
that in the sense contended for there is no foundation for say
ing that the judge neglected or refused to allow the bill so as
to warrant its authentication by aidavit.
T/ze motion must be allowed.
DUNN v. Guosr.
1. The statute (section 7, page 111 R. S.) xes the liability of an assignor
by endorsement of negotiable instruments after diligence against the maker
by suit, unless such suit would have been unavailing.
2. A plea and offer of proof to make a general indorsement a restrictive
one. or to show that the contract was different from that expressed, cannot
be done without a violation of established principles.
3.
Under the statute an assignee of a. note takrs it subject to any defense
existing between the maker and the payee. which app:-ars on the face of the
note, or of which he had notice at the time of the assignment, and in such
case it is immaterial whether the note was assigned before or after it be
came due.
4. In an action by an indorsee against an indorser, an answer which al
leges that the consideration received by the indorser, was less than the face
value of the note, is bad on demurrer.
5. If an indorser does not choose to x his own liability, the law will x
it for him.
Error to District Court of Arapahoe Count;/._
____
_M__
135
Dunn v. Ghost.

Mr. J. W. HoRNER & Mr. R. D. THOMPsoN, for plaintiff in
error.
Messrs. GEORGE & FAUNTLEROY, for defendant in error.
STONE, J. One J. V. Morrice made his promissory note to

John C. Dunn, the plaintiff in error, for the sum of $118.50.
Dunn assigned the note to A. C. Fisk, who transferred it to A.
M. Ghost, the defendant in error, who brought suit thereon
against Dunn as indorser, alleging insolvency of the maker
under the statute. A demurrer was sustained to the answer,
and an amended answer filed, to which also a demurrer was
sustained. Defendant below elected to stand by the amended

answer, and judgment was rendered against him for the amount
of the note. Error is assigned upon sustaining the demurrer to
the amended answer and the judgment thereupon.
The answer in question avers that the defendant below sold
and assigned the said note to Fisk after maturity, for the
purpose of transferring the same, and for no other purpose;
and that the note was so assigned for and in consideration
of the sum of ten dollars, and for no other consideration
whatever, and that plaintiff obtained the note after said as

signment.
The ground of the demurrer is that such answer does not
contain facts constituting a defense to the plaintiffs action.
Sec. 7, Chap. IX of our statutes (R. S. p. 111), fixes the lia.
bility of an assignor by indorsement of negotiable instruments
after diligence against the maker by suit, unless such suit
would have been unavailing.
A similar statute in Illinois, from which ours is copied, has
received judicial construction from the Supreme Court of that
State, to the effect that unless by special endorsement he re
stricts his liability, the assignor, by a general endorsement of
the note, binds himself to pay it upon the happening of either
of the contingencies specified in the statutes. Schuttler v
Pratt, 12 Ill. 419; Bledsoe v. Graves, 4 Scam. 385.
136

Dunn v. Ghost.
If it is intended by the answer to convey the meaning that

there was at the time of the assignment of the note by appel
lant an understanding or agreement, aside from the naked en
dorsement that Dunn, as assignor, was not to be held bould
for the payment of the note, the plea was certainly bad, since
this court in the case of Martin v. Cole, 3 Col. 113, held that
a plea and offer of proof to make a general endorsement a re

strictive one, or to show that the contract was different from
that expressed, cannot be done without a violation of estab

lished principles. But if instead of pleading a parol contem
poraneous agreement, as in the case of Martin v. Cole, supra,
the defense goes no further than the mere language of the
averment, to-wit: that Dunn assigned the note for the purpose
of transferring it only, which is equivalent to an averment
that he assigned the note not intending that he should be
liable as an assignor; such a plea is a simple denial of the
legal import of the assignment, and is bad on demurrer.
Trask v. Roberts, 1 B. Munroe, 201; Weaver v. Fries, 85 Ill.
356; Lee v. Pile, 37 Ind. 107.
A point is also made upon the averment in the answer that
the assignment was made after maturity of the note. We

cannot see that this avails as a defense. The only distinction
made by our statute between notes assigned before and after
maturity as affecting parties thereto, is set out in sections eight
and nine of chapter nine of the General Laws, which provide
that where the instrument is assigned after maturity, the maker,
in a suit against him by an endorser, may set up the same de
fense that would have been good in a suit against him by the
payee; while if the assignment was made before maturity the

maker, in a suit against him by an endorser, may plead any
payment made on the obligation prior to the assignment to
the plaintiff, provided the latter had notice of such payment
before the endorsement to him.
The rule at common law is that a note transferred after ma
turity is affected by all the equities between the original par

ties, whether the holder had notice thereof or not; but only

Dunn v. Ghost.
137
'
such equities as attach to the note itself, and as between those

parties. Story on Prom. Notes, Sec. 178.
Our statute has changed the common law rule so far as to
subject the note so assigned to all the equities between the
maker and payee, where suit is brought against the maker.
This construction is put upon a similar statute in Nebraska.
Davis v. Nel/igh, 7 Neb. 78. Ibid. 84.
The statute changes the law merchant so as to dispense with
demand and notice, and renders the assignor liable only in
case diligence, where availing, is had against the maker; but,
upon this contingency arising, such liability, under the statute,

seems to attach irrespective of whether the instrument was as
signed before or af'ter maturity.
In other words, an assignee of a note takes it subject to any
defense existing between the maker and the payee, which ap
pears on the face of the note, or of which he had notice at the
time of the assignment; and in such case it is immaterial
whether the note was assigned before or after it became due.

Frin/c et al. v. Ryan, 3 Scam. 324. The liability imposed on
the assignor by the terms of our statute is a general liability.
conditioned only upon diligence against the maker, or excuse
therefor, unless the assignment be restricted by its own terms.
Leavett v. Putnam, 3 Comstock, 494; Redlield & Bigelow
Lead. Gas. Bills and Prom. Notes, 156. The Supreme Court
of Illinois, in construing a like statute, say:
The manifest intention of our act is to give the last assignee
the full benet of all the assignments. The policy of such an
enactment is obvious. Such being the condition of the last
assignee, paper of this description gains more credit in the

community. Such paper is not taken on the faith of the
maker, but upon the faith of the endorsements. They are
looked to as the means by which the note is to be paid. The
condition of the last assignee, if he had no remedy against his
remote assignor, would not be improved at all by a multitude
ot' assignments. The rst assignor, by placing his name on
the note, gives it the weight of that name in the community;
138
SUPREME Conn or Conomoo.

Dunn v. Ghost.
he gives the note character; he declares by his endorsement to

all to whom the note may come in a fair course of business,
that the maker is able to pay it, and if he is not able and does
not pay after due diligence to coerce it, that then in that event,
he will pay it. This is the contract which he makes with

every person who may become the owner of the note by assign
ment, not only with his immediate assignee, but with all sub
sequent assignees, and is made liable on such contract by the
express terms of the statute. Every assignor shall be liable to
the assignee. Such liability is several, and attaches in favor
of each
An assignee.
express liability being thus created by the act, it is un-i
necessary there should be a privity of contract between the
remote assignor and the last assignee. * * * The promise
or contract growing out of the endorsement is by our act,
made assignable, and therefore the assignee of such a promise
or contract can maintain an action upon it. The endorsement
is on the paper itself; it accompanies it everywhere, and by
successive assignments in the same way, each one becomes a
contract of the same character to pay the last assignee in case
the maker is unable to pay. He is to have the benet of each
and every assignment. lf this were not the case, the situation
of the last assignee would be hopeless with an insolvent maker,

and intermediate assignors in the same condition, although
there be a good assignor on the note. This consideration of

itself would determine the question of the liability of the re
mote assignor. Olaf-rd v. Keating, 3 Scam. 250.
In a recent case the Supreme Court of Kansas, in passing
upon the precise question raised in the case of illartin v. Cole,
supra, and in which they hold the same doctrine, say: That
from such an endorsement the la\v implies a well dened con
tract, and that such contract casts a conditional liability on the
endorser, is conceded. And that such implied contract is con
elusive as between remote parties to the note without notice or
any di'erent express contract, is clear. Doolittle v. Ferry,
20 Kansas, 230, 27 Am. Repts. 167; See, also, Charles v. Davis,
139
Dunn v. Ghost.
+2 \Vis. 56; Harrison v. llclfim, 18 Iowa, 480, and 1 Daniels

on Neg. Inst. Sec. 719.
As regards that part of the answer which alleges that the
consideration received by the endorser, Dunn, was less than
the face value of the note, and whereby it is contended by his
counsel that the appellant, if liable at all, is liable for only the
sum actually received by him, as the proper measure of re
covery, we think the plea stands upon no better foundation
than the claim of entire exemption from liability.

To require each successive assignee or holder of a negotiable
instrument to ascertain and keep track of the true amount
paid and received by each antecedent endorser, and to allow
each endorser sued to show that he received from his immedi
ate assignee less than the amount due on the instrument from
the maker, would impose such a complication of rights and
liabilities upon parties, and such burdensome restrictions upon
the use of negotiable paper, as to greatly impair, if not utterly
destroy, its present usefulness in business transactions. The
law xes the liability of the assignor. The ground of the rule
is, that if an endorser does not choose to x his own liability,
the law will x itfor him. Otherwise no one can know how
or to what extent an endorser in blank is bound. In the case
before us, if the endorsement was in blank, the assignee had a
right to ll it up by writing over the name of the endorser
thus : Pay to A. M. Ghost. In that case, what amount to
be paid would the order of the assiguor import? Certainly
not $10 ; not any sum less than the amount due on the note.
The legal import would be simply that the note was to be paid
according to its tenor.
It would be useless to attempt to review or reconcile the
great contrariety of decisions touching the liability of parties
to negotiable instruments. Much of this conict of opinion
arises out of the difference between the law merchant and spe
cial statutes wliich, like ours, govern the subject within a
particular State. In some of the States the rule as to the
measure of recovery, in the suit between assignor and assignee,
140
Hake, Guardian, v. Stotts' Executor.
seems to be fixed at the amount which the assignee plaintiff

has paid for the note.
Mr. Parsons, in his elaborate work on Contracts, after a
thorough presentation of the cases touching the sale of notes

and bills for less than their face value, expresses his convic
tion in favor of the rule allowing a recovery of the full amount
due upon the obligationthat being the contract upon which
the assignor undertakes conditionally to see fulfilled. 3 Par
sons on Contracts, pp. 146, 148.
Mr. Daniel, in his standard treatise on Negotiable Instru
ments, takes the same view of this question. 1 Daniel on Neg.
Inst. Secs. 757 to 758.
Entertaining this view, we must hold that as to that part of

the answer which avers that Dunn received but ten dollars as
the price of the note from Fisk, the intermediate assignee, it

is not a good defense. It would not be good in a suit against
Dunn by Fisk, and it certainly cannot be good in the suit
against him by Ghost, the remote assignee.
The demurrer was rightfully sustained, and the judgment

will be affirmed.
Judgment affirmed.
HAKE, Guardian, v. STOTTs' ExECUTOR.

1. An executor is bound to the exercise of that ordinary care, skill and
diligence which prudent men exercise in the conduct of their own affairs. It
is his duty to keep the trust fund separate and apart from his own moneys.
2. An executor cannot be heard to defend against a removal on the ground
that his violation of duty has benefited the estate.
3. The requirement that an executor shall give bonds for the faithful per
formance of his duty, is only one safeguard against waste and mismanage
ment; the power of removal is another, and legatees are entitled to the pro
tection of both.
4. The fact found that an executor has not acted fraudulently cannot
avail him where his mismanagement has all the effects of a fraud.
141
Appeal from the District Court of Boulder County.

Mr. W. A. HARDENBRook, for appellant.
Mr. RICHARD II. WHITELEY, for appellee.
ELBERT, C. J. This was a proceeding under section 2854,

General Laws, having for its object the revocation of the letters
testamentary granted to the appellee, as executor of the estate
of Lewis Stotts, deceased. Upon the petition of the appellant,
who is guardian of Luella Stotts and Mary Stotts, infant heirs
of the deceased, charging waste and mismanagement of the
estate, the appellee was summoned by the county court to show
cause why such revocation should not be made. The case was
removed by appeal to the district court, where it was referred
to a referee, and judgment entered upon his findings, denying
the prayer of the petition. The petitioner appeals to this
court.
The deceased by his will gave all his personal property to
his two children, Luella Stotts and Mary Stotts, and directed
that it be sold by the executor, at public sale, on six months'
credit, on good secured notes, and when any money was col
lected thereon that it should be loaned at interest to responsi
ble persons, and that the interest as collected should be applied
in educating the children; the principal and balance of interest
to be divided between the two daughters when the oldest was
twenty-one, or when eighteen if then married; the youngest to
receive her share when she was twenty-one, or when eighteen,
if married. The petition alleges that the appellee as executor
received into his hands assets of said estate upwards of $4,000,

and has since received a large amount of interest and profits
thereon; that he has wasted and mismanaged the estate in
thisthat he has mixed the moneys and property of the estate
with his own moneys and property; has traded and speculated
with said moneys and property of the estate in his own name,
142

Hake, Guurdian, v. Stotts' Executor.
and for his own benefit and profit; has converted some of said
moneys and property of said estate unlawfully to his own use;
has invested said moneys and property of said estate on insuf
ficient and inadequate rates of interest; that he has not kept
proper books of account of his said doings, and has rendered
false, fraudulent and untrue accounts and reports to the pro
bate court and county court; has invested some of said funds
in his individual name, and not in his capacity as executor,
and has otherwise improperly acted, contrary to his duty as
executor.
The statute makes waste or mismanagement of the estate

a cause of removal.
An executor is bound to the exercise of
that ordinary care, skill and diligence which prudent men ex

ercise in the conduct of their own affairs. Having accepted
the duties of an executor, he must perform them. He must
use due diligence in the conservation of the estate, and not
suffer it to be injured by his neglect. 3 Redfield, Wills, Chap.
16, Sec. 48. He may be guilty of a devastavit, not only by a
direct abuse, as by spending or consuming, or by converting
to his own use the effects of the deceased, but also by such acts
of negligence and wrong administration as will disappoint the
claimants on the assets.
2 Williams' Ex. 1,630, 1,636.
Respecting the management of the estate, the referee finds

that the said Benjamin L. Stotts has not transacted the busi
ness of such estate in a correct business manner, and has not
kept such funds belonging to said estate, separate and distinct

from his own funds and estate, but has mixed and blended them
together, and that said Stotts has not kept strict and accurate
book accounts of his transactions with said estate.
This is putting the derelictions of duty of the appellee in

their mildest form.
The record shows a violation of almost
every rule which the law has established, and almost every duty
which the law imposes for the preservation of trust funds. By
his own testimony it appears that he has mingled the trust
moneys with his own, and used it in his private business, deal
ing in sheep and cattle and horses; that he has deposited in
143
banks to his own credit, and not to his credit as executor; that
he has loaned it, and taken the notes and securities payable to
himself individually, and not in his representative capacity;

that he has received payment in trade, and rendered no account
of such transactions; that the amounts of interest returned by
him from time to time are not amounts actually received, but
self-made estimates of what he thought he ought to return;
that securities have been allowed to become lost and dissipa
ted; that both principal and interest have been permitted to

remain long overdue and unpaid, without any but the most
indifferent efforts to collect; and in one case the Statute of Lim
itations appears to have barred the debt; no books have been
kept, and he is utterly unable to give any correct or satisfac

tory account of his stewardship, extending over a period of
more than ten years. In other words, practically the trust
fund has no separate and distinct existence, either in specie or
evidences of indebtedness, bearing the mark of the fund.
With the exception of one note payable to himself as executor,
as he says by mistake, the entire trust estate, like his cattle,
bears his private brand.
Several extracts from his testimony might be made, but one
will suffice. He says: The interest set forth in my report to
the Probate Court all came from notes.
I have no means of
informing the court as to the amount. Have no means of

showing the specific amounts when collected, and from what
particular sources. Cannot tell where the item of interest,
April, 1875, $63, came from; cant say from whom it was col
lected. Cannot give any information as to the persons to
whom the moneys of the estate were loaned from the time
they came into my hands in 1867 up to the date of this report
that has escaped my memory. Have no memoranda or
means by which I can supply that information. Cannot give
any more specific information in regard to the property which
I took in trade at various times, in settlement of the debts of
the estate, than that already given. Don't know how many
times I have done that in my dealings with the estate. Don't
144
SUPREME Counr or Conoaano.

Hake, Guardian. v. Stotts Executor.
remember whether ve or six, or twenty-ve or a. hundred
times. Have done so whenever I thought it advisable, and

the best course to collect the debt.
Such mismanagement of a fund left by a father to his infant
children, cannot be tolerated. It was the duty of the appellee
to have kept the trust fund separate and apart from his own
moneys, and, in accordance with the directions of the will, to
have loaned it at prevailing rates of interest to responsible
persons; interest should have been collected when due and
applied to the education of the children, as directed by the
will, and any surplus should have been re-loaned. Bank de
posits should have been in his name as executor, and notes and
securities should have also been so taken. Ordinary diligence
should have been used in collecting notes when due, and in
re-investing; the same diligence should have been used in the
preservation of securities and the entire fund. 3 Redeld,
Wills, Chap. 16, Sec. 48; 2 \Villiams, Ex., devdstavit.

Of all his transactions in respect to the trust fund, he should
have kept an account of the amounts loaned, when and to
whom loaned, and upon what security; amounts of principal

collected, and how disposed of; amounts of interest collected
and how expended or re-invested.
In other words, an account
which would have shown upon call, or in case of his death, the
exact status of the trust fund, with items, dates, amounts,
names of parties, etc., etc.
The failure of the executor in any one of these particulars
migl1t not justify his removal or charge him in every case.
We lay down a general rule of duty, which such an executor
should observe, and any infraction of which the county courts,
as peculiarly the guardian of minor children, should promptly
denounce and correct. In this way the fund will preserve its
separate existence, capable of being clearly and .distinctly des
ignated and distinguished; and onlyin this way can trust funds
be protected and gross abuses be prevented.
The nding of the referee. that this mismanagement has
inured to the benet of the estate, is unsupported by the evi
DECEMBER Team, 1879.
I-l
-L\
Ch
dence, and, if supported, cannot avail.
An executor cannot
be heard to defend against a removal, on the ground that his

violation of duty has beneted the estate. Cramp v. Wil
liams, 56 Geo. 591. Nor are the facts that the executor is
solvent and responsible, and that his hondsmen are solvent
and responsible, grounds for his continuance in his trust ca

pacity.
The requirement that an executor shall give bonds for the

faithful performance of his duty, is one safeguard against waste
and mismanagement. The power of removal hy the county

court is another safeguard, and the legatees of the fund are
entitled to the protection of both. The waste and mismanage
ment are not to be allowed to continue, on the ground that the
legatees have an action at law on the bond; the policy of the
law is to arrest it by removal. Nor can the fact found by the
referee, that the executor has not acted fraudulently, avail
him, since his mismanagement has all the effects of a fraud.
The charge that the petitioner is inuenced by improper

motives, and but seeks the management of this fund with sin
ister views, is aside from the question.
It will be the duty of the county court, upon the removal
of the executor, to appoint a successor under the provisions of
the law; to take good and sufcient bond for the faithful dis
charge of his duty; to see that he discharges his duty, and
generally to protect this fund from the rapacity of all comers.
The judgment of the district court is reversed and the cause
remanded, with directions to enter up a judgment revoking
the letters testamentary of the appellee, and taxing the costs
of this proceeding against the appellee, to be paid out of his
individual estate.
The district court will cause its judgment
and proceedings to be certied to the county court, together

with all the papers belonging to the le of the county court
pertaining to the estate of Lewis Stotts, deceased, to the end
that the county court may proceed with the administration of
the estate. There will be a like judgment against the appellee

for costs in this court.
.
10
Reversed.
146

Pipe v. Smith.
PIPE V. SMITH.
1. Under the statute (Gen. Laws, Section 1,682), bills for relief on the
ground of fraud must be led within three years after the discovery, by the
aggrieved party, of the facts constituting the fraud.
2. The rule is, that where the fraud is committed more than three years
before the commencement of the action, the complaint should show that the
discovery was made within the three years next precding the commence
ment of the action.
3. The complainant must allege not only his ignorance of the fraud, but
when and how he discovered it.
_
4. The bar appearing on the face of the bill, a demurrer to the bill will
be sustained.
5. Courts of equity will not interfere if a party slumbers on his rights or
the means of detecting fraud. The full possession of the means of detect
ing a. fraud is the same as knowledge.
Appeal from District Court of Jeferson County.

ON the 9th of May, 1878, John Pipe, the appellant, led in
the District Court of Jefferson County, his complaint, alleging

as follows:
1st.'l That sometime during the year of 1859 or 60, Williain
A. H. Loveland, of the town of Golden, in the county of Jef
ferson and State of Colorado, and others, citizens of the United
States, settled upon the lands hereinafter described as em

bracing the town site entry of the said town of Golden (form
erly Golden City), organized a town company, laid off in blocks
and lots, with streets and alleys, all of said lands, except that
portion lying east of East street in said town, and the respec
tive occupants of lots in said town, erected houses and other

buildings thereon, and otherwise improved the same, all of
which was done before the government of the United States
made a survey of such lands.
2nd. That afterwards, to wit, on the 11th day of Decem
ber, A. D. 1863, and prior to the entry of said town site, the
citizens of and residents. holders and occupants of lots in said
town, by their agreement in writing of that date, subscribed
147
Pipe v. Smith.
and delivered by them to the said \V. A. H. Loveland, agreed

with the said Loveland and with each other, that if the said
Loveland, who was still then a citizen and large property own
er of said town, and who also subscribed the said agreement as
a party thereto, would advance and furnish to the probate judge
of said county of Jeiferson the necessary sum of money to en
able such probate judge to enter and pay for such lands, he,
the said Loveland, should be entitled to a deed from such pro

bate judge to all the residue of such lands after they, the said
citizens and occupants of lots in said town, should receive
deeds of conveyance from such probate judge for all lots held
by them respectively, and that they would not become litigants
as against the land so to be entered and conveyed. That the

said Ensign B. Smith, defendant, as one of said citizens and
settlers, subscribed the said agreement, and was and is a party
thereto. That in pursuance of said agreement, the said Love

land afterwards, to wit, on the day and year last aforesaid, as
plaintiff is informed and believes, furnished and advanced to
the said probate judge the necessary sum of money to enable
him, the said probate judge, to enter and pay for said lands,
to wit, the sum of ve hundred dollars.
3d. That afterwards, to wit, on the 18th day of January, A.
D. 1864, at the proper land office of the United States, under

the act of Congress entitled An act for the relief of citizens
of towns upon the lands of the United States under certain
circumstances, approved May 23, 18-H, and with the said sum
of money so advanced by the said Loveland, Henry Altman,
then probate judge of said county of Jeffersou and then Terri
tory, now State of Colorado, as such probate judge, entered and

paid for the said lands, in trust however, for the several use
and benet of the occupants thereof, according to their respect
ive interests, and which said lands are situate in the county
of Jefferson and State of Colorado, and are known and de
scribed as follows, to wit:
The west half of the southwest
quarter of section t\venty-seven (27), the east half of the south

east quarter of section twenty-eight (28), the east half of the
148
SUPREME Coumr or COLORADO.

Pipe v. Smith.
northeast quarter of section thirty-three (33), and the west

half of the northwest quarter of section thirty-four (34), in
township three (3), south of range seventy (70) west. That in
pursuance of such entry and in consideration of the said sum

of money so paid as aforesaid, the government of the United
States afterwards issued patents for the said lands, bearing
date the rst day of September, A. D. 1866, running to the
said Henry Altman, probate judge of the county aforesaid,
his successors in olce and assigns in trust, however, as afore
said.
4th. That afterwards, by a private and special act, approved
March 3d, 1864, entitled An act to legalize and conrm the
entry of the town site of Golden City, the Legislative As
sembly of the then Territory of Colorado ratied and conrmed
the said entry and the said agreement.
5th. The plaintiff is informed and believes that after
wards, to wit, either in the latter part of the month of
March, to wit, after the 11th day of March, or in the month
of April, 1864, the exact date of which he is unable to as

certain, in pursuance of the act of the Legislative Assem
bly of the then Territory of Colorado, approved March 11th,
1864, entitled an act prescribing rules and regulations for
the execution of the trust arising under the act of Congress,

entitled An act for the relief of citizens of towns upon lands
of the United States under certain circumstances, the said
Henry Altman, probate judge as aforesaid, gave public notice

of the entry aforesaid of said town site, by posting notices
thereof in three public places in said town, the precise places
of which, however, the plaintiff is unable to state, and by pub

lishing the said notice in a newspaper called the Rocky
Mountain News, at that time printed and published at Den
ver, in the county of Arapahoe, in the then Territory of Colo

rado, once a week for three successive weeks. That no news
paper was at that time printed and published in said county

of Jefferson, and that the said Rocky Mountain News was the
nearest newspaper to said town of Golden City, printed and

~
149
Pipe v. Smith.
published in said Territory of Colorado, and that the said no
tice contained an accurate description of the lands so entered

as aforesaid, as the same were stated in the certicate of entry
of said lands received by the said probate judge from the land
oicers at the time of such entry.
"
6th. That after the said citizens and occupants of lots had
received deeds of conveyance from the probate judge of said
county of Jefferson to the respective lots and parcels of said
lands, held by them respectively, and of all lots and parcels of
said lands to which they were respectively entitled,'in pursu
ance of law and of said agreement, Jonas M. Johnson, who had
then become probate judge of said county of Jefferson, duly
qualied and acting as such, on, to-wit, the 23d day of Decem
ber, A. D. 1864, in pursuance of law, and the trust in him re
posed as such probate judge, and in pursuance of said agree

ment, did, as such probate judge, make, execute, acknowledge
and deliver to the said William A. H. Loveland a deed of con
veyance of, in and to the said lands so entered in trust as afore
said, bearing date the day and year last aforesaid, which deed
of conveyance, however, contained an exception in words as
follows: Excepting what lots has heretofore been deeded to
occupants or settlers, and what now remains in litigation, and
the title yet undetermined by the probate judge holding them
in trust, for the occupants of the town site of Golden City, un
der the pre-emption laws of Congress for the use of the occu
pants thereof, and which said deed of conveyance was after
wards, to-wit, on the 23d day of December, A. D. 1864, duly
recorded in the office of the recorder of deeds of said county
of Jefferson, in book F, page 77, to which record reference
is hereby made for greater certainty.
7th. That all that portion of the said lands embraced in
the said town site entry lying east of East street, in said town,
containing twenty-eight and 30-100 acres, more or less, was in
litigation between one Henry B. Hine and the said Ensign B.
Smith, defendant herein, in a proceeding there pending before

the said J. M. Johnson, probate judge of said county of Jeffer
150

Pipe v. Smith.
son, wherein the said Hine was plaintiff and the said Smith
defendant, at, to-wit, the date of making and delivery of the
said deed of conveyance to the said Lovel-and, by the said pro
bate judge.
8th.
That afterwards, to-wit, on the 11th day of October,
A. D. 1869, one Joseph Mann, then probate judge of said

county of Jefferson, as such probate judge, made. acknowl
edged and delivered to the said Ensign B. Smith, his
certain deed of conveyance of that date, of, in and to the
said parcel of said lands so lying east of East street, in said
town of Golden City, and more ~particularly described as fol
lows: commencing at the northeast corner of the northwest
quarter of the southwest quarter of section number (27)
twenty-seven, in town (3) three south, range (70) seventy west,
running thence west (20) twenty chains; thence south (2) two
chains; thence south 34 30', twenty-three and one-fourth
chains; thence east (7) seven chains; thence north (20)
chains, to the place of beginning, the same containing twenty
eight and thirty one-hundredths acres, and being that portion

of the northwest quarter of the southwest quarter of section
twenty-seven (27), township three (3) south, range seventy (70)
west, lying east of East street; that such deed was made and
delivered to the said Ensign B. Smith, defendant, by the said
Joseph Mann, probate judge, as the result of the said litiga
tion between the said Hine and Smith concerning the same
parcel of land, and in pursuance of a stipulation and agree
ment made and entered into in writing between the said Hine
and Smith, as the plaintiff is informed and believes.
9th. That the plaintiff is informed and believes. and so
states the fact to be, that the said Henry B. Hine was not an
occupant of, nor in possession of, nor entitled to the possession
or occupancy of the said parcel of land, or of any part thereof

so deeded and conveyed as aforesaid to the said defendant, En
sign B. Smith, at the date of the said town site entry, to-wit,
on the 18th day of January, A. D. 1864, or at any time subse
quent thereto.
Dncizmnsn TERM, 1879.
151
Pipe v. Smith.
10th. That the plaintiff is informed and believes, and so

states the fact to be, that the said Ensign B. Smith was not an
occupant of, nor in possession of, nor entitled to the possession
or occupancy of the said parcel of land, or of any part thereof

so deeded to him as aforesaid, at, to wit, the date of the said
entry, or at any time prior thereto, nor was the said defendant
an actual occupant of, or entitled to, the occupancy or posses
sion thereof, or of any portion thereof, at any time subsequent

to the date of said entry; that the plaintiff is further informed
and believes, and so states the fact to be, that neither the whole
nor any part of said land so deeded by Joseph Mann, probate

judge, to Ensign B. Smith, the defendant as aforesaid, was
occupied or in the possession of any person or persons, or asso
ciation of persons or company, either at the date of the said
agreement, or of the said town site entry, but that the same
was vacant and unoccupied, and was not held or claimed by

any person, settler, resident, or citizen of said town.
11th. That plaintiff is informed and believes, and so states

the fact to be, that the said Henry B. Hine did not within
ninety days next after the rst publication of the said notice
so printed and published in the newspaper, as aforesaid, in
person, or by his duly authorized agent or attorney, sign a
statement in writing containing an accurate description of the
said parcel of land, or any portion thereof, so deeded to the said
Ensign B. Smith, as aforesaid, and of the specic right, inter
est or estate therein which he claimed to be entitled to receive,
and deliver the same to or into_ the oice of the probate judge
of said county of Je'erson, and that no such statement was at
any time prior to, or since the making and delivery ot' said
deed to said Ensign B. Smith, as aforesaid, delivered to or into
the oice of said probate judge, by the said Henry B. Hine,

or by any agent or agents, or attorney or attorneys for him, and
in his behalf.
states the fact to be, that the said Ensign B. Smith, defendant.
did not, within ninety days next after the rst publication o."
152
SUPREME CouTT of ColoFADo.

Pipe v. Smith.
said notice, in person or by his duly authorized agent or at

torney, sign a statement in writing containing an accurate de
scription of the said parcel of land, or any portion thereof so
deeded to him as aforesaid, and of the specific right, interest or
estate therein, which he claimed to be entitled to receive, and
deliver the same to or into the office of the Probate Judge of

said county of Jefferson, and that no such statement was at
any time prior to the 23d day of December, A. D. 1864, the
date of the said deed to Loveland, delivered to or into the of:

fice of the probate judge of said county of Jefferson by the
said Smith, or by any person or persons for him or in his be
half.

states the fact to be, that the said Joseph Mann, probate
judge, as such probate judge, executed and delivered the said
deed of conveyance to the said Ensign B. Smith, defendant,
without hearing or having heard any evidence or proofs touch
ing the rights either of the said Smith or the said Hine to the
parcel of land, or any portion thereof described in said deed,
and that the same was executed and delivered without author
ity of law, and in violation of the trust in him, the said pro
bate judge, reposed.
14th. That the parcel of land described in said deed from
Mann, probate judge, to Smith, defendant, was not prior to

the date of said town site entry, laid off into blocks and lots,
and did not originally form a part of the town site of Golden
City, but that since the said entry the same has been platted
and laid off into blocks and lots having streets and alleys, and
is now known as Bush and Fisher's addition to the town of
Golden.
15th. That notwithstanding the said exception in his said

deed from the probate judge to him contained, the said Wil
liam A. H. Loveland claiming to have both the legal and
equitable title to the said parcel of land so deeded to Smith as
aforesaid, did on the 20th day of June, A. D. 1866, by his deed
of conveyance of that date, release and quit-claim unto John J.
153
Pipe v. Smith.
Bush, Silas W. Fisher and Joseph B. Cass, the undivided two

thirds of the said parcel of land so described in the deed, and
deeded to said Smith as aforesaid by Joseph Mann, probate
judge, as well as to other portions of the said town site entry;
that afterwards, to wit, on the 21st day of January, A. D. 1868,

by their separate deeds of that date, the said Fisher and Cass re
conveyed to the said Loveland, so far as they had the right and
power so to do, an undivided one-third thereof, they, the said
Bush, Fisher and Cass having previously by deeds of release
released to each other in such manner that the said Fisher
and Cass were each possessed and entitled, so far as the said
several deeds could make them, to an undivided one-sixth of
said parcel of land, and the said Bush to an undivided one-third

thereof. That afterwards, to-wit, on the third day of Novem
ber, A. D. 1869, the said Loveland, so far as he could by deeds
so do, by his deeds of that date conveyed an undivided one
sixth of said parcel of land to one Henry Nutt; that afterwards,
to-wit, on the 4th day of March, A. D. 1870, the said Love
land, Bush, Nutt, and one Mary B. Jennison, so far as they
had the right and power to do, by their deed of conveyance of that
date, conveyed to one Edward L. Berthoud, lots one (1), two (2),
three (3), four (4), five (5), and six (6), in block nine (9), in said
Bush and Fisher's addition to the town of Golden aforesaid; that
the said Berthoud afterwards, to-wit, on the 8th day of March,
A. D. 1870, by his deed of that date, conveyed so far as he had
title thereto, the said lot six (6) to one Margaret Fisher; and
afterwards, on the 28th day of June, A. D. 1870, by his deed
of that date, the said Berthoud conveyed to the said Loveland
the said lots one, two, three, four and five, so far as he, Berth
oud, had title thereto; that, afterwards, to-wit, on the 29th day
of February, A. D. 1872, the said Loveland executed and de

livered to the plaintiff a title bond to the same lots one, two,
three, four and five, conditioned that upon the payment by
plaintiff of a certain promissory note in said bond described,
made and delivered to the said Loveland by the plaintiff, he,
the said Loveland, would execute and deliver to the plaintiff a
154
SUPREME Counr 01-" Cononsno.

Pipe v. Smith.
deed of conveyance to said lots; that, afterwards, to-wit, on
the 22nd day of August, A. D. 1872, the said Margaret Fishel

and her husband, by their deed of that date, so far as they had
title thereto, conveyed the said lot six to the plaintiff; that on
or about the said 22nd day of August, A. D.1872, the plaintiff
obtained a quiet and peaceable possession of the said lots one,
two, three, four, ve and six, in block nine, in Bush and Fisl1ers
addition to the town of Golden aforesaid, and hath ever since
been and still is in the actual possession thereof, and occupies

the same as a place of business and for a residence for himself
and family.
That plaintiff paid for said lot six, which had a. house there
on at the time he purchased the same, the sum of ve hundred
dollars, and that for said other ve lots he made and delivered
to the said Loveland his promissory note, being the same note
as described in said bond for the sum of twelve hundred dollars, payable three years after the date thereof, with interest at
the rate of two per cent. per month from date until paid, dated
the 29th day of February, A. D. 1872.
16th. That between the date of his so acquiring the posses
sion of said lots as aforesaid, and the 13th day of May, A. D.
1873, the plaintiff made great, lasting and valuable improve
ments thereon, to-wit, of the value of one thousand dollars,
and that he made such improvements without actual notice of
the adverse claim of the defendant thereto.
17th. That on the said 13th day of May, A. D. 1873, in
the District Court within and for the said county of Je"erson,
said Ensign B. Smith, defendant, commenced an action of
ejectment against the plaintiff for all said lots, in which said
action of ejectment the said Smith is plaintiff and this plain

tiff is defendant; that such proceedings have been had and taken
in said action of ejectment; that, afterwards, to-wit, at the
November term, A. D. 1877, of the District Court within and
for the county of Jefferson and State of Colorado, a udgment

of eviction against the defendant in said action, and in favor
of the plaintiff therein was rendered by said court; that the
=.
ail
DECEMBER T1-mm, 1879.
15-'5
Pipe v. Smith.
plaintiff herein hath taken an appeal from said judgment to

the Supreme Court of the State of Colorado, and that the same
is now pending in the said Supreme Court.

18th. That he had no actual notice of the said adverse
claim of the defendant to said lots until after the commence
ment of the said action of ejectment, and that he purchased
and improved the said lots in good faith; that the said lots
constitute and form a part of the land described in the said
deed from Joseph Mann, Judge, to the defendant.
19th. That until after the said judgment was obtained in

said action of ejectment, as aforesaid, the plaintiff was in
formed and induced to believe and did believe that he had a
good defense at law to said suit, but since the rendition of
said judgment he hath been induced to believe that he hath
no just defense to said suit at law, but that his claim is only
an equitable one, which is not allowed to him in said suit, and
that plaintiff is without an adequate remedy at law.
20th. That the defendant has threatened and is threaten
ing to press and is now pressing the said appeal to a hearing
in the said Supreme Court, and plaintiff is afraid that the
said Supreme Court will airm the said judgment of eviction,

and that the defendant will obtain possession of the said lots
by means of said suit, unless restrained by the order of this
court in the premises.
V
Wherefore the plaintiff demands judgment.

1. That the defendant, his agents and attorneys, be re
strained by injunction from the further prosecution of said
action of ejectment and from enforcing the said judgment, by
writ of possession or otherwise, if the same be airmed in and
by the said Supreme Court.

2.
That the said deed of conveyance from Joseph Mann,
probate judge, to the defendant, be delivered up and canceled.

3. And for such other and further relief in the premises as
to the court may seem just and proper.
4. And for the costs of this action.
The complaint was duly veried.
156
SUPREME Coonrr or COLORADO.

Pipe v. Smith.
The appellee, Smith, demurred, alleging as grounds of de
murrer,
'
1st. That the said complaint does not state facts sufficient
to constitute a cause of action. 2d. That said complaint
shows that said cause of action is barred by the Statute of Limi

tations.
3d.
That the said complaint is ambiguous and uncertain.
The District Court sustained the demurrer, and entered

judgment dismissing the action. To reverse this judgment,
Pipe prosccutes this appeal.
Mr. WILLARD TELLER and Mr. A. II. DEFRANCE, for ap

pellant.
Messrsi Caarexrna 8.I1d'BLACKBURN, for appellee.

ELBERT, C. J.
The appellant claims through Loveland, and
his right to the relief prayed is of no better or higher charac

ter than would be L0velands right, if himself complainant.
The premises in dispute were within the exception contained
in the probate judges deed to Loveland of December 23, 1864,
and title did not pass. Pipe v. Smith, 4 Col. 444.
Wliatever claim Loveland had to the premises is based on
his agreement of December 11, 1863, with certain citizens of
the town of Golden City. This agreement, in fact, forms the

basis of the present action. For the purposes of this decision,
we need not enter upon the question of the validity of the

agreement, for if its validity be admitted, the action is barred,
by the Statute of Limitations. But for the allegation of fraud
the provisions of section 1683 would be applicable to and

would bar the action; this allegation, however, brings the
action within the provisions of section 1682, General Laws,
p. 597.
'
The claim is that in virtue of this agreement, after having

conveyed to occupants the lots to which they were respectively
entitled, the probate judge held the residue of the town site
entry in trust for Level-and; that the deed of December 23,

'
157
Pipe v. Smith.
1864, to Loveland, was not a full discharge of this trust, but

only a partial execution of it; that he was still entitled under
the agreement to receive a further conveyance of the premises

excepted from the operation of his deed, there being no legal
claimants thereto under the town site act; that the defendant,
Smith, was not entitled under said act, and that the convey
ance to him by the probate judge by his deed of October 11,
1869, was in fraud of Lovelands rights and equities under
the agreement. The bill seeks to have this deed annulled and
title decreed to appellant as grantee of Loveland.
Although the fraud charged is constructive, it is within the
statute. Wilmerding v. Russ, 33 Conn. 75; Keaton v. Keaton
20 Mo. 531. It consisted, as is claimed, in the execution of
the deed to the defendant Smith, when (1) he had not led his
statement, as required by the town site act, within the ninety
days, and (2) when he was not an occupant of the premises.
Bills for relief on the ground of fraud must be led within
three years after the discovery b_v the aggrieved party of the
facts constituting the fraud. Gen. Laws, Sec. 1682. The deed
from the probate judge to Smith, which is sought to be an
nulled as fraudulent and void, was executed October 11, 1869.
This action was commenced May 9, 1878, more than eight

years thereafter.
'
The bill does not allege when the facts constituting the fraud
were discovered. The rule is that where the fraud is commit
ted more than three years before the commencement of,the
action, the complaint should show that the discovery was made
within the three years next preceding the commencement of
the action.
Carpenter v. The City of Oakland, 30 Cal. 444;
S-ublette v. Tenney, 9 Cal. 423; Aug. Lim. sections 183, 296.

lle must not only allege his ignorance of the fraud, but when
and how he discovered it. (11-rr v. Ililton, 1 Curtis, c. c. 390;
Moore v. Green, 2 Curtis, c. c. 203. The bar of the statute
appeared on the face of the bill, and the demurrer was prop
erly sustained.
Tunney, supra.
Ang. Lim. 294, and cases cited.
Sublette v.
1o8
:

Pipe v. Smith.
Again, we are of the opinion that the facts stated in the

complaint would preclude a nding of discovery within the
three years preceding the commencement of the action, if
alleged.
Loveland and his grantees, prior to the decree, were
dealing with property, the subject not only of a Zia pendens,

but the subject of a public trust under the laws of Congress.
The exception in Lovelands deed was of lots * * * in liti
gation, and the title yet undetermined by the probate judge
holding them in trust for the occupants of the town site of
Golden City, under the pre-emption laws of Congress, for the

use of the occupants thereof, and he was thereby charged with
notice of the litigation and its results. The probate judge
found Smith entitled under the law, and his deed to Smith was
not only a recognition of this title, but a denial of Lovelands

claim to the premises.
had, then accrued.
Lovelands right of action, if any he
In the absence of fraud, an action seeking to enforce the

trust claimed to be created by the agreement, would have
been barred under the provisions of section 1683, after ve
years. The allegation of fraud, however, brings the action
within the provisions of section 1682; and the statute com
menced to run upon the discovery of the facts constituting the

fraud.
As before said, the existence of two principal facts are
claimed as rendering the deed to the defendant Smith fraudu
lent and void. (1) The defendant Smith led no statement
claiming the premises within the ninety days, as required by
the act. (2) He was not an occupant of the premises or the
bonade owner of improvements thereon. Neither were
matters susceptible of concealment; the rst was a matter of
record, and involved its inspection; the second was of easy
ascertainment, involving an examination of the premises.
The right he claimed under the agreement, the notice of the
litigation, his knowledge of the deed, should have put him
upon inquiry. An inspection of the record and an examina

tion of the premises, would have disclosed his right of action.
159
Pipe v. Smith.
It was the duty of purchasers to examine Loveland's title.

The very terms of the agreement put purchasers from Love
land upon inquiry, as to what action had been taken by the
probate judge respecting the premises in dispute. The pro
bate judge's records and files were accessible and open to in
spection. An examination would not only have shown the
result of the litigation, but the facts constituting the fraud.
Not only this, but the plaintiff in this case had actual notice
of the adverse claim of Smith by the commencement of the
action of ejectment in May, 1873, five years prior to the com
mencement of this suit. In fact, the discovery of the fraud
three years prior to the commencement of the suit, is impliedly,
if not directly, admitted by the bill, but its effect is sought to
be avoided by the allegation that the plaintiff considered that
the facts constituted a good defense at law.
In answer to this it is sufficient to say that ignorance of the
law respecting the remedy which it provides will not prevent
the statute from running. Independently of statute, courts of

equity would not allow the statute to run in the case of fraud
until after the discovery of the facts constituting the fraud.
Ang. Lim. Secs. 183185 et seq.; Troupe v. Smith, 20 Johns,
33, section 1,682, is but an enactment of this equitable doc
trine, with a fixed period of limitation.

But whether it be enforced as a statutory provision or an
equitable rule, it is subject to the same rule of diligence touch

ing the discovery of the fraud. Courts of equity will not in
terfere if a party slumbers on his rights or the means of detect
ing the fraud. Ang. Lim. Sec. 190; Young v. Cook, 30 Miss.
330; Johnson v. Johnson, 5 Ala. 103; Veazie v. Williams,
3 Story, 530; McClure v. Ashley, 7 Richardson's Eq. R. 440.
The presumption is that if a party affected by any fraudu
lent transaction or management, might with ordinary care and
attention have seasonably detected it, he seasonably had actual
knowledge of it. Ang. Lim. 187, and cases cited.

In Farnham v. Brooks, 9 Pick. 212, it was said that full
possession of the means of detecting a fraud, was the same as

knowledge.
SUPREME CoURT of CoLoRADO.
160
C. C. R. R. Co. v. Smith.
Loveland and his grantees cannot be permitted to sleep on

their rights for eight years, either with knowledge of the fraud,
or with the means of its detection within their power by the
least ordinary diligence.
The action must be regarded as barred by the statute, and
the judgment of the court below is affirmed with costs.
Affirmed.
THE COLORADo CENTRAL R. R. Co. v. SMITH.

1. The rules of this court require that each error shall be separately al
leged and particularly specified.
2. In ejectment, where the defendant claimed title to the whole premises,

disclaiming as to no part thereofheld, immaterial that the defendant was
in actual possession of only a part.
3. Smith v. Pipe, 3 Col. 188, and 4 Col. 444, cited and approved.
Appeal from District Court of Jefferson County.

SMITH, the appellee, filed his declaration in ejectment in the
District Court of Jefferson County, alleging title in himself in
fee to certain lands in Golden City, within the town site

entry. The appellant filed the plea of the general issue, and
the cause was tried by the court without the intervention of a
jury. The court entered its finding in favor of the appellee,
and gave judgment thereon. To reverse that judgment, the
defendant below prosecutes this appeal. In this court it as
signs as error, among others, the following:
The district court erred in the following particulars:
1. In admitting improper testimony offered by the plain
tiff.
2.
In rejecting proper and material testimony offered by
defendant.
3. In admitting in evidence the deed from Mann to Smith.
161
C. C. R. R. Co. v. Smith.
4. In refusing to allow defendant to show that it was not

in possession of a part of the premises sued for at the time of
the commencement of this suit, and that other parties than
the defendant were in possession of a part thereof at such
time.
5. In refusing to allow defendant to prove that appellee

plaintiffwas not an occupant or in possession of the tract of
land in dispute, or of the land described from Mann to Smith
at the date of the town site entry or prior thereto, or entitled
to the possession or occupancy thereof, and that he was not an
occupant thereof at the time he received said deed from Mann
to him.
6. In refusing to allow defendantappellantto show

that Henry B. Hine was not an occupant or entitled to the
occupancy or possession of the land sued for, or the land de
scribed in the deed from Mann to Smith, at the date of the
town site entry or prior thereto.

7. In refusing to allow appellant to prove that no evi
dence was taken by Mann, probate judge, of the appellee's"
right to the land described in said deed from Mann to appellee.
8. In admitting in evidence the bundle of papers, alleged
files, and the docket entries in the proceeding of Hine versus

Smith.
9. In admitting parol testimony to show what land, if

any, was in litigation between Hine and Smith in said pro
ceeding of Hine vs. Smith.
The same title and the same facts were involved in Smith v.
Pipe, 3 Col. 188, and 4 Col. 444.
Mr. WILLARD TELLER and Mr. A. H. DE FRANCE, for ap

pellant.
Mr. JoHN W. BLACKBURN, for appellee.
ELBERT, C. J. The first and second assignments are gener
al; there are no specifications of the improper testimony ad
mitted, or the proper testimony rejected, and no notice can be

11
162
George v. Tufts.
taken of them. The rules of the court require that each

error shall be separately alleged and particularly specified.
The fourth assignment is not well taken. So long as the
defendant claimed title to the whole premises, disclaiming as
to no part thereof, it was immaterial that it was in actual pos
session of only a part.
The questions raised by the third, fifth, sixth, seventh,
eighth and ninth assignments, were all decided in the case of
Smith v. Pipe, 3 Col. 188, and 4 Col. 444. The same title of
appellee and the same facts were involved. This case does not
present these questions in any other or different aspect, and
we see no reason to change the views heretofore expressed up
on them.
These are all the assignments that are noticed in the argu
ments of counsel, or that it is necessary to consider.
The judgment of the court below is affirmed, with costs.
Affirmed.
GEORGE v. TUFTS.
1. Where a cause is heard upon an agreed state of facts, no exception to
the judgment is necessary.
2. Secret liens, which treat the vendor of personal property who has de
livered possession of it to the purchaser, as the owner until payment of the
purchase money, cannot be maintained; they are constructively fraudulent
as to creditors.
Error to District Count of Arapahoe County.

TUFTs, the defendant in error, brought an action in replevin
against George, in September, 1875. The declaration was in

the cepit and detinet. Pleas non cepit and property in de
fendant. Issue was joined and the cause submitted to be tried
by the court without a jury, on an agreed statement of facts
filed, which was as follows:
-
163
George v. Tufts.
It is stipulated between the respective parties hereto, that

the facts of their case are as follows, and that this suit be tried
by the court without a jury upon such statement, that is to say:

First. At the time of the execution of the notes, copies of
which are hereto annexed, marked A, B, C, D, E, F, G, H,
and I, and which are a part of several of like tenor and date,
the plaintiff was a manufacturer of soda fountains, etc.
Second. Previously to the execution of such notes, the firm
of Berbower & Walther, druggists and vendors of soda water,
entered into negotiations with the plaintiff for the purchase
by them from him of the property described in the pleadings
herein.
Third. Such negotiations resulted in a conditional sale of

such merchandise, upon the terms and conditions contained in
the notes aforesaid.
Fourth. The price agreed on was $1,700 (seventeen hundred

dollars), that part of such notes were paid, and that the residue
thereof, to wit: the notes hereto attached, remain unpaid.
Fifth. After the making of such notes and the delivery of
such merchandise thereunder, as aforesaid, the firm of Ber
bower & Waither was dissolved.
The said Berbower sold and
conveyed, his interest in the firm property to said Walther,

and the latter assumed the payment of the debts of the firm.
Sixth. Said Walther continued the business, late of said
firm, for a short time, and then executed to the defendant in
this action a conveyance of his property, in trust, to sell the

same and pay certain creditors named, and who were only a
portion of the creditors of said firm, and some of whom were
relatives of said Walther, which conveyance is to be put in
evidence in this action; that the liabilities to said relatives
amounted to about two thousand dollars, and the liabilities to
the first National Bank of Denver, the only other creditor pro
vided for in such conveyance, amounted to about five thousand
dollars.
Seventh. The defendant herein drew such conveyance at the

request of said Walther, and said Walther executed the same,
164

George v. Tufts.
and no other person whomsoever had any part in the making

thereof.
Eighth. At the time of the execution of said instrument,

said defendant knew the nature of the contract between
the plaintiff and the said Berbower & Walther, and knew that
some of said notes were unpaid.
Ninth. Upon the execution of such conveyance to the de
fendant, he took possession of the property of said Walther,
and that he employed one William Town and said Walther, as
clerks, to take charge of and to sell and dispose of the same
under said defendants orders.
Tenth. The goods mentioned in the pleadings herein, re

mained from the time of their delivery to said Berbower &
Walther, until they were taken under the proceedings in
action, in the same store and in the same situation and condi
tion in every respect.
Eleventh. The present value of the goods replevied in this

action is the sum of one thousand dollars.
Twelfth. The amount of principal and interest unpaid on

said notes at the date hereof is nine hundred and ninety-six
52-100 dollars.
JAMES W. TUFTs,
By HoRNER & HARMON, his Attorneys.
T. GEORGE, Defendant.
The court announced its finding to be in favor of the defend
ant, and assessed his damages for the detention at one cent. A
motion for a new trial was interposed and allowed. The de
fendant moved for judgment on the finding already had; the
motion was denied, and the cause set down for trial, without a
jury, and on June 12, 1876, the court entered the following
finding and judgment :
And the court being now sufficiently advised in the prem
3 ises, it seemeth to the court that the title to the property, goods
and chattels in the said plaintiffs writ mentioned, is in the
plaintiff. Wherefore, on his motion, it is considered by the
court that the said plaintiff do have and retain of and from the
DECEMBER TERM,
1879.
165
George v. Tufts.
said defendant, possession of the property, goods and chattels

in the said plaintiffs writ mentioned, to wit: One arctic ap
paratus, one tumbler washer and two fountains, being the same
property delivered by the said James W. Tufts to Messrs. Ber
bower & Walther, and lately in their possession in their drug
store on Fifteenth street, in the city of Denver, Arapahoe
county, Colorado Territory, and his costs by him in this behalf
laid out and expended, to be taxed, and have execution there
for.
To reverse this judgment the defendant prosecutes this writ

of error.
Mr. THOMAs GEORGE and Mr. P. W. FAUNTLERoy, for plain

tiff in error.
Mr. J. W. HoRNER, for defendant in error.

ELBERT, C. J. Where a cause is heard on an agreed state
of facts, no exception to the judgment is necessary. Clayton
v. Smith, 1 Col. 95.
The agreement of Tufts with Berbower and Walther, that

the title to the property sold and delivered to them should re
main in Tufts until payment of the purchase-money, was void
as to creditors. Tufts, if desirous of preserving a lien on the
property sold, should have complied with the provisions of the
Chattel Mortgage Act then in force. R. S. 102.
Secret liens, which treat the vendor of personal property
who has delivered possession of it to the purchaser as the
owner until the payment of the purchase-money, cannot be
maintained. They are constructively fraudulent as to credit
ors, and the property, so far as their rights are concerned, is
considered as belonging to the purchaser holding the posses
sion. This is the doctrine of the Supreme Court of Illinois
under a similar statute. Murch v. Wright, 46 Ill. 488; Mc-"
Cormick v. Hadden, 37 Ill. 360; Ketcher v. Watson, 24 Ill.
59; Henry et al. v. R. I. Locomotive Works, 3 Otto, 672.
SUPREME CouRT OF Color ADO.
166
Horner v. Stout.
Nor does notice of the lien affect the right of creditors.

Frank v. Miner, 50 Ill. 445; Porter v. Dement, 35 Ill. 479.
The judgment of the court below on the agreed facts should
have been for the plaintiff in error. The judgment is reversed
and the cause remanded, with directions to enter judgment in
accordance with the views herein expressed.
Reversed.
HoRNER V. STOUT.
The object of the statute (Gen. Laws 122) is to prevent fraud and decep
tion by precluding the mortgagor of personal property from holding him
self out to the world as an unqualified owner.
To this end he must either
transfer the possession to the mortgagee, or give notice to the world of the
lien by acknowledging and recording the mortgage as required by the
statute.

SToUT, the appellee, brought suit in attachment against
Philip P. Gomer and Henry M. Foster, and levied upon a
portable saw mill. The appellant Horner interpleaded, claim
ing the property under a chattel mortgage previously executed
and delivered to him by Gomer. The chattel mortgage was
not recorded until after the levy of the attachment, but the
property when levied upon, was in the possession of Alva Go
mer as the agent of the mortgagee. The cause was tried by
the court, a jury being waived, and judgment rendered against
Horner. To reverse that judgment, Horner prosecutes this
writ of error.
Mr. J. W. HoRNER, prose.

Mr. J. C. HELM, for defendant in error.
DECEMBER Tsmu, 1879.
167
Horner v. Stout.
ELBERT, C. J. There is no question about the bona dea of
the transaction between Horner, the mortgagee, P. P. Gomer,

the mortgagor, and Alva Gomer, the agent.
It was a plain business transaction, to which no circum
stance of suspicion attaches. There was a loan by Horner to

I. P. Gomer, and a chattel mortgage to secure it. While, by
the terms of the mortgage, the chattels were to remain in the
possession of the mortgagor, they were, in fact (owing to the
necessity of removing the mill), delivered to Alva Gomer as
the agent of the mortgagee. The transaction amounted to a
mortgage of chattels, with possession of the chattels delivered
to and remaining with the mortgagee, under the provisions of
section 1 of the Ohattel Mortgage Act. General Laws, 122.
That the agent was the lessee of the mill at the time of ac
cepting the agency, does not affect the rights of the mortgagee.
In agreeing with the mortgagee to take and hold the property

as his agent, he subrogated his rights as lessee to those of the
mortgagee, in so far as they should be in conict.
The pos
session being changed, and it being so agreed, there was no

objection to the earnings of the mill going to the mortgagor.
The mortgagee took such immediate possession as the nature

of the mortgaged chattels admitted, and this was all that was
required.
The lease was executed only seven days prior to the chattel
mortgage. Alva Gomer, the lessee, had never taken possession
under it. A few days prior thereto he had taken possession on
an order from P. P. Gomer as his agent, and then returned to
Denver. Upon the execution of the chattel mortgage he im
mediately returned from Denver, where the transaction was
had, to Custer county, where the mill was situated, and took
possession as agent for Horner, and remained in possession
until the levy of the attachment. His possession was open
and exclusive.
While there was no proclamation of his agency,
he did not conceal it.

'
The object of the statute is to prevent fraud and deception
by precluding a mortgagor of personal property from holding
168
Suramrs Courrr or COLORADO.

Hexter v. Clifford.
himself out to the world as an unqualied owner. To this end,

he must either transfer the possession to the mortgagee, or give
notice to the world of the lien by acknowledging and recording

the mortgage, as required by the statute. Herman-Chattel
l M0rt.; see 92 et seq.
f
In this case the mortgagor was entirely removed from any
possession of the mortgaged property, and did not pretend to
exercise any ownership over it. The mortgagee had a clear
and unequivocal possession by his agent.
There was no circumstance of fraud, nor can we see any fact
touching the nature of the mortgagees possession calculated
to mislead a man of ordinary prudence.
'
Under the evidence the udgment should have been for the
plainti in error. The judgment of the court below is re
versed, and the cause remanded, with directions to assess the
interpleading claimants damages, and enter judgment in ac
cordance with the views herein expressed.

-
Reversed.
HEXTER v. CLIFFORD.
1. Since the adoption of the Code, remedies therein provided for subject
ing the property of a judgment debtor to execution, must be pursued when
ever adequate for the purpose, and a bill in the nature of a. creditor's bill can"
not be maintained in such cases.
2. The fact that the property sought is a trust fund. interposes no obstacle
in subjecting it to the satisfaction of the judgment under the Code, when the
fund was created by the debt/or himself, and the fund sought to be reached
has risen from the sale of his own property.
3. A bar by the Statute of Limitations is a. defense in the nature of a spec
ial privilege, and must be pleaded specially.
'
EW01 to District Court qf Ampahoe County.

Hnxrsa, the plainti' in error, on the 30th of June, 1879,
169
Hexter V. Clifford.
filed his complaint in the District Court of Arapahoe County,

against John S. Langrishe, Thomas Clifford, and Michael D.
Clifford.
The complainant alleges, that Hexter recovered judgment

in the County Court of Arapahoe, against Langrishe, in Janu
ary, 1879, for $1,432. That execution was issued, and re
turned in part satisfied. That Thomas Clifford received a con
veyance of certain lands in Arapahoe county from Langrishe,
in February, 1871, in trust, to secure the payment of $8,400
and interest, to Michael D. Clifford, with power of sale on de
fault of payment. That Thomas Clifford, after default, sold
and conveyed said lands to said Michael D. Clifford for the price
of $14,400. That Michael did not pay any part of such purchase
money; and that after discharging the debt due him, there
remained due from Michael to Thomas, as such trustee, $4,400,
or thereabouts, and that no part of it has been paid. That
Thomas did not execute said trust in good faith, but confeder
ated with Michael to invest him with the title without pay
ment of the purchase-money, in violation of the trust, and
with intent to deprive Langrishe and his creditors of the bene
fit of the surplus due. That the plaintiff cannot ascertain the
true amount due from said Michael, nor can he reach the
same in satisfaction of his judgment without the aid of the

court. Prayer for judgment:
I. That Michael may be declared to hold the property,
subject to the trust aforementioned.
II. That he may be required to account for the purchase,
money aforesaid.
-
III. That so much of the surplus as may be necessary may

be applied in discharge of the plaintiffs judgment.
To this complaint Thomas and Michael D. Clifford interposed

a demurrer, which was sustained and judgment rendered there
on for the defendant. Hexter prosecutes this writ of error to
reverse that judgment.
Messrs. GEORGE & FAUNTLEROY, for plaintiff in error.
140

Hexter v. Clifford.
Messrs.~ MILLER & CLOUGH, for defendant in error.
BECK, J. This record presents the question whether the rem

edy provided by the Code of civil procedure for reaching money
or property of a judgment debtor in the hands of other persons
was designed to be an exclusive remedy, or whether a bill in
equity, in the nature of a creditors bill, may still be main
tained. The provisions of our Code upon this subject are
almost a literal transcript of the provisions of the Code of
California on the same subject, and are similar to the provis

ions of the Codes of Wisconsin and New York. In California
it is held that the remedy was intended as a substitute for 5
creditors bill.
A(Zams v. Hzzckett, 7 Cal. 187; 1llcUulZou_r/It
v. cam, 41 on. 298.
'
In Wisconsin the Code remedy is held to constitute the only

manner of obtaining the relief formerly had under a creditors
bill. Graham at al. v. LaOr0sse cf: Milwaukee Railroad Com

pany, 10 Wisconsin, 459.
.
In New_York the courts say that the proceedings supple
mentary to execution provided by the Code, are a substitute for
the creditors bill as formerly used in chancery--Lynch v.
Johnson, 48 N. Y. 27hut appear to sustain the remedy by
creditors bill also, on the ground that it was given by statute,
and the statute has not been repealed. Catlin v. Doug/it-_z/, 12
How. Pr. 458.
_In this State also we had a statute specially authorizing a
creditors bill. Its purposes were to compel the discovery of
property or things in action belonging to the udgment debtor,
or held in trust for him, and to prevent the transfer of proper

ty, money or things in action, or the payment or delivery
thereof to the debtor. and to require their application to the
satisfaction of the judgment against him. R. S. p. 98. This
statute was expressly repealed upon the adoption of the Code,
and the latter act appears to contain provisions for all the re
lief which was contemplated by the creditors bill. This ac
tion on the part of the legislature, indicates a purpose not
____
Dacnmnaa TERM, 1879.
171
Hexter v. Clifford.
merely to provide a substitute for the former proceeding, but

to make the new system the exclusive remedy.
That a common law remedy cannot now be maintained to
obtain relief, in cases where a special proceeding is provided

by the Code for the same object, was decided by this court in
the case of the Atchison, Topeka cf: Santa Fe Railroad Oom
pany v. The Attorney General, at the October term, 1879.
It was there attempted to pursue the remedy by information

in the nature of a qua warranto as at common law, for the
alleged usurpation or misuse of a franchise, notwithstanding
the repeal of the statute on the subject of quo warranto, and

the substitution of chapter 25 of the Code, concerning actions
for the usurpation of an ofce or franchise. This court, in a
carefully prepared opinion, held the Code remedy to be exclu
sive. The reasoning by which this resnlt is reached is applica
ble to the question presented in this case, and the decision is
an authority in support of the conclusion reached in this case,
viz: That since the adoption of the Code, remedies therein
provided for subjecting the property, and choses in action of a
judgment debtor to execution, must be pursued whenever ade

quate for the purpose, and that a bill in the nature of a. credit
ors bill, cannot be maintained in such cases.
Counsel insist that the remedy is not adequate in the pres

ent instance; also, that the proceeding here is not merely a
crcditors bill, but a bill to enforce a trust, which object can
not be accomplished by the statutory proceeding in force.
The cases which hold that a trust fund cannot be reached by
proceedings supplementary to execution, are cases where the
trust was created by some person other than the judgment
debtor. They are generally cases where property or funds
have been bequeathed by will to an executor or trustee, who
was directed by the will to apply the increase to the support
of the cestui qua trust. In such case it is held that the fund
itself can not be reached by the creditor by any process; for it
is within the exception of the statute which exempts from the
claims of creditors, property held in trust for the debtor, where
172

Hexter v. Clifford.
the trust has been created by, and the fund so held in trust
has proceeded from some person other than the debtor him
self.
It would seem from the authorities upon this point, that
the surplus of such fund, above the amount necessary for the
support of cestui que trust, may be reached by bill in equity,
but not otherwise. Graff v. Bennett, 31 N. Y. 9; Campbell

v. Foster, 35 N. Y. 361; Lock v. Mabbett, 2 Keys, 457.
The point is not well taken, however, in this case, for the
trust here was created by the debtor himself, and the fund
sought to be reached has arisen from the sale of his own prop
erty. The bill shows that the trustee sold the property, and
executed to the purchasers a deed of the premises sold, and
that he has not paid any portion of the purchase-money, but
the same remains still due and unpaid. The purchaser was
entitled to retain from the purchase-money the amount due
him from Langrishe, the judgment debtor, and it was his duty
to pay the balance over to the trustee. This he has failed to
do, which constitutes the unexecuted portion of the trust; noth
ing now remains but the payment of the surplus.
The fact that this surplus is a trust fund, interposes no ob
stacle in subjecting it to the satisfaction of the judgment un
der the Code proceedings. The promise of Michael D. Clifford
to pay the same, made to the trustee at time of sale, consti
tutes a simple contract with the trustee for the benefit of the
cestui que trust. Langrishe being the beneficiary, might, un
der the authority of Lehow v. Simonton et al. 3 Col. 346,
maintain an action at law in his own name against Michael D.
Clifford for its recovery; and if this be so, it is equally within
the reach of his judgment creditor by statutory proceedings.

Another objection urged against the statutory remedy is,
that the judgment debtor is a non-resident of the State, and it
is asserted that unless he be brought in, and jurisdiction be
acquired over him, his debtors cannot be required to answer

concerning their indebtedness to him. Counsel argue that
section 224 of the Code is in aid of the other provisions of the
chapter, and can only be used in connection with them. These
I)sc1-mass TERM, 1879.
173
Hexter v. Clifford.
propositions are untenable.
Sections 222 and 224 of our Code
correspond to sections 292 and 29} of the New York Code, and
it is there held that proceedings under these sections are en
tirely independent of each other, and one may be instituted
and maintained without the other. 4 Waits Prac. p. 131.
The same authority holds that no notice to the judgment debt

or is necessary in proceedings instituted under section 294.
It is true that section makes the matter of notice discretionary
with the judge; but section 224 of our Code contains no re
quirement upon that subject,,and upon principle, as well as
upon authority, the debtor must be regarded as in court for

the purposes of proceedings under this section. Jurisdiction
being acquiredover him in the original action, that action is
considered as still pending so long as the judgment remains
unsatised. Proceedings to compel the application of money
or property in the hands of other parties to the satisfaction of
the judgment, are proceedings in the action. 4 \Vaits Prac.
p. 128.
The point is raised that the action is barred by the Statute
of Limitations, and this question is discussed in the briefs of
counsel. We do not consider that this question was properly

raised by the demurrer. This defense is in the nature of a
special privilege, and is not available under the general objec
tion that the complaint does not state facts sufficient to consti
tute a cause of action. The defense must be plead specially,
whether the pleading be by demurrer or answer. Brennan v.
Ford, 46 Cal. 7; Brown v. Jlartin, 25 Cal. 82; Farwell v.
Jackson, 28 Cal. 107.
The demurrer was properly sustained.
Judgment airmed.
174"

Finnerty et al. v. Fritz.
FINNERTY ET AL. v. FRITZ.

1. If an agent act for both parties in the same transaction, he cannot re
cover comlnissions from either, unless the parties lmew and assented to his
acting for both. Nor can an agent become the purchaser without the knowl
edge and assent of the seller, nor if he be employed to purchase can he be
himself the seller.
2. The general rule is, that the duties of an agent continue, and commis
sions are not due until he has effected a bargain and sale by a contract which
is mutually binding on vendor and vendce. But when the agent produces a.
purchaser acceptable to the owner and able and willing to purchase on tenns
satisfactory to the owner, the agent has performed his duty. and, if through
the fault of the owner, the sale is not consummated, the agent may recover
his commissions!
3. A title bond executed by the owner of the property, that only gives to
the obligee an option to purchase, but not being a mutual obligation binding
upon both contracting parties, is enforceable only by acceptance and perform
ance of its conditions during the continuance of the option.
4. Where an agent to sell negotiates such conditional sale as between
himself and his principal, the execution and delivery of such title bond. to the
purchaser or obligee, may be regarded as a sale of the property during the
option; and the agent may negotiate a sale of the same property for the
obligee without forfeiting his commissions.. But if the agent. concealing
from the obligee his agency to sell, induce the latter to undertake, in connec
tion with himself the purchase of the property, such concealment being ob-'
noxious to the rules of public policy, will avoid his commissions, whether the
seller knew of the double relation or not.

Tm; facts are stated in the opinion.
court below had judgment.
The p1ainti' in the
Messrs. H. M. and W. TELLER, and Mr. G. B. REED, for

appellants.
'
Messrs. WELLs, S.\11'rn & Mscon, for appellee.

BECK, J. The most important questions raised by the as
signment of errors in this case involve the subject or agency,
|~
~l
DECEMBER
TERM, 1879.
175
and the principles which must control the conduct of an agent

in transactions between himself and his employer, and in his
transactions with third persons in respect to the subject-mat
ter of his agency.
The general principles of law applicable to real estate bro

kers appear to be well settled, and rules defining their duties
have been laid down and sanctioned by a long course of judicial
decisions, but difficult questions often arise whether or not a
given state of facts bring the agent within a rule which im
poses a forfeiture of commissions for misconduct. On such
questions some contrariety of opinion exists. The weight of
authority favors a stringent application of these rules to all
cases falling clearly within their reason; but as to all other
cases, whenever it is made to appear that the agent is the pro
curing cause of the sale, the law leans to that construction
which will best secure the payment of his commissions rather
than the contrary.
As applicabie to the case under consideration, it may be ob
-
served that it is a well settled rule that the same person gan
not be both agent of the owner to sell, and agent of the pur
chaser to buy, for the reason that the interests of buyer and
seller necessarily conflict, and the same agent cannot serve
both employers with efficiency and fidelity. The interest of
the agent conflicts with his duty in such case. His duty to
the vendor to sell for the highest price is wholly incompatible
with his duty to the purchaser to buy for the lowest price, and
these inconsistent relations, if assumed, would expose him to
the temptation to sacrifice the interests of one party or the
other, in order to secure his double commissions. Wherefore,
it is the established policy of the law to remove all such
temptations, and to this end, every contract whereby an agent
is placed under a direct inducement to violate the confidence
reposed in him by his principal, is declared to be opposed to
public policy, and not capable of being enforced as against any
person who has a right to object. The effect of the rule is,
that if an agent act for both parties in the same transaction,
176

he cannot recover compensation from either, unless the parties

knew and assented to his acting for both. The rule cannot be
avoided by proof that no injury has resulted from his double
dealing, for the policy of the law is not remedial of actual
wrong, but preventive of its possibility.
It is equally well settled that an agent to sell cannot himself
become the purshaser without the knowledge and assent of

the seller; nor if he be employed to purchase can he be himself
the seller. These rules all rest on grounds of public policy.
Everhart v. Searle, 71 Pa. St. 256; Rice v. Wood, 113 Mass.
133; Lynch v. Fallon, 11 R. I. 311; Raisen v. Clark, 41 Md.
158; Lloyd v. Colston & Moore, 5 Bush. 587; Kerfoot v.
Hyman, 52 Ill. 514; Scribner v. Collar, 40 Mich. 378.
Illustrative of the character of cases not falling within the
reason of the foregoing rules, and which constitute exceptions
thereto, we note that it is held if an agent or broker act open
ly for owner and purchaser, with the knowledge and assent of
both, each having contracted to pay him a commission, he
may recover the stipulated compensation, from both parties;
so also, if an agent be employed to sell at a stipulated com

mission, he may offer himself as a purchaser, and if accepted
as such under the contract to pay commissions, he may pur
chase and be entitled to retain from the purchase-money an
amount equal to his commissions; or if employed to purchase,
the employer stipulating to pay him a given sum for the prop
erty, regardless of its cost to the agent, the sum so agreed up
on may be recovered.
Again, if the extent of the agency be merely to bring the
contracting parties together, and does not involve the duty of
negotiating for either, the agent is termed a middleman, and
may contract for and recover commissions from both. Stew
art v. Mather, 32 Wis. 344; Shepherd v. Hedden, 29 N. J.
L. 334; Mullen v. Keetzleb & Lampton, 7 Bush, 253; Her
man v. Martineau, 1 Wis 151; Siegel v. Gould, 7 Lans. 178;

Anderson v. Weiser, 24 Iowa, 430; Merriman v. David, 31
Ill. 404.
177
Appellants insist in this case that the evidence shows Fritz,

the plaintiff, to have been guilty of such gross misconduct as
forfeits all claims he may have had against them for commis
sions.
It is shown by the record that on the 28th day of October,

1878, the appellants executed to Davies a bond, conditioned to
convey unto him the Little Chief mine at Leadville, provided
he paid the sum of $300,000 purchase-money therefor, in
thirty days; and containing also a stipulation for an extension
of thirty days, on payment of the sum of $25,000 as a forfeit,
in the event that the purchase should not be consummated.
On the succeeding day Davies and Fritz entered into an agree
ment in writing, associating themselves together as partners in
the business of buying, selling and trading in mining prop
erty, and containing the following stipulation concerning the

mine in question: And it is further expressly agreed that the
said Jacob S. Fritz is to have and receive one-third share of
the gross net proceeds, free from all cost and expense, that may
be received and realized, over and above the respective amounts
mentioned in certain bonds for the sale of the Little Chief
mine and the Union lode, in California mining district, in said

county of Lake, said bond having been made to the said John
Davies by the parties therein named respectively, on the 28th
day of October, A. D. 1878.
Subsequently, it becoming evident that the sum named in
the bond as forfeit-money would have to be raised, since a sale
of the mine could not be effected within the first thirty days,
Davies and Fritz entered into an agreement with Oviatt and
Cooper to share with them the profits which might be realized
in a sale of the mine, upon condition that the latter parties
advance the $25,000 forfeit money. The money was raised
under this arrangement, and paid to the appellants on the 26th
day of November. The bond was assigned to Oviatt & Cooper,

and appellants executed to them a deed of the mine, bearing
date the 26th day of November, 1878, and placed the same in
escrow, to be delivered on payment of the balance of the pur
12
178

chase-money. On the 23d day of December, 1878, a sale was

effected under the Oviatt & Cooper deed, of three-fifths of the
mine for the sum of $300,000, to John W. Farwell and other
Chicago parties. On the same day the entire property was
conveyed to Wirt Dexter, in trust for all parties interested, the
trust deed securing to Davies, Fritz, Oviatt, Cooper and George
R. Clarkthe latter being a partner of Oviatt & Coopertwo
fifths of the mine in certain proportions, the trust to be execu
ted after the Chicago parties should be reimbursed, the $300,
000 purchase-money and expenses, out of the proceeds of the
mine.
Davies testified on part of the appellants that an under

standing was arrived at between himself and Fritz to procure
the bond and share in the profits to be realized upon a sale of
the mine, before the bond was executed; and that this under
standing or agreement was reduced to writing afterwards;
also, that at the time of these transactions he was not aware
of the fact that Fritz was expecting to receive commissions

from the appellants. Fritz, on the contrary, testified that he
told Davies that he expected to be paid commissions, and he
further testified that he had no agreement for an interest in
the bond, until after the terms and conditions of the contract
with Davies were all settled by the execution and delivery of

the bond. He also testified to having informed Finnerty
subsequently to the giving of the bond, that he expected to ac
quire a contingent interest in the property. This statement
is denied by Finnerty.
We have no hesitation in declaring, as a proposition of law,
that if Fritz exerted his influence with appellants to procure

the bond in the name of Davies, in pursuance of a secret un
derstanding with Davies, that the bond when obtained should
be held for their joint benefit, that such conduct was an exer
cise of bad faith toward the appellants, amounting to a fraud
in law. It was an abandonment of his agency, and upon discov
ering the facts, appellants had the same right to regard him as a
purchaser with Davies, as if his name had been inserted in
179
the first instance as an obligee in the bond. It was an at

tempt to assume the relations of both agent and purchaser
without the knowledge and assent of the sellers, and if the
facts are proven, the misconduct constitutes a bar to the re
covery of commissions. In the case of Stewart v. Mather,

supra, Chief Justice Dixon, speaking for the court, concern
ing this double relation of agent and purchaser, very perti
nently observes:
The relations are wholly incompatible with each other, and
cannot be combined in the same person. The law, will not
permit it. Assuming the character of purchaser, the person
so acting necessarily abandons that of agent, and can claim
nothing in the latter capacity in his negotiations with his
former principal.
If, however, the fact should be found as sworn to by Fritz,
that no understanding or agreement was made whereby he was
to be interested in the bond until after its delivery to Davies,
we are of opinion that the foregoing principles are inapplica
-
ble to the facts.
We will, therefore, consider next how the
law should be administered upon this hypothesis.

The general rule undoubtedly is, that the duties of the agent
continue, and commissions are not due until he has effected a
bargain and a sale by a contract which is mutually binding on

both vendor and vendee.
Love et al. v. Miller, 4 C. L. J. 152,
and authorities cited.
But where an agent has produced a purchaser who is accept

able to the owner, and able and willing to purchase on terms
satisfactory to the owner, he has performed his duty, and if
from any failure of the owner to enter into a binding contract
or to enforce a contract against the purchaser, the sale is not
completed, the agent may recover his commissions. Parsons
on Contracts, 90; Moses v. Bierling et al. 31 N. Y. 462; Phe
lan v. Gardner, 43 Cal. 310.
The sale in this instance was not complete upon the execu
tion of the bond, owing to the peculiar nature of the instru
ment; and the duties of the agent, therefore, continued for
180

certain purposes. But they did not continue for the purpose
of negotiating a sale for the appellants. That branch of his
duty was fully performed, and as to it he was discharged. It
remained for the agent to do what he could to consummate the
sale contracted,.and any act of his which would interfere with
its consummation would be a breach of his duty. The reason
that the commissions were not due upon the execution of the
contract of sale, was that this contract was not mutually oblig
atory upon both vendor and vendee, and because the purchaser
yroduced. was not willing to enter into a contract of this nature.
The bond in question was one of those ordinary title bonds So
extensively employed in the mining regions of this State, by
means of which those desiring to speculate in mines before
purchasing the same outright, procure from the owners an
option to buy on payment of a. stipulated price, within a xed
period of time. The obligor binds himself to execute a deed
to the obligee on performance of the condition; no obligation

is executed by the obligee. If the contract proves advanta
geous to the obliges, he pays the purchase-money and receives a
deed; otherwise he suffers the time for performance to lapse. //
So far as the owner of the property and his agent are con
cerned, the execution of such instrument is to be regarded,
during its existence and prior to default, as a sale of the prop

erty. Neither can execute any other sale in the name of the
former proprietor. But the obligee may contract a sale of the
property on his own account, and at any price he can obtain
by virtue of the title he is to acquire under his bond. He may
likewise employ an agent for such purpose, and unless the
duties of such agency would conict with the interests of the
obligor in the bond, he may employ for this purpose the same
person who, as agent of the owner, brought the property to his
notice, and through whose inuence the obligee became inter
ested therein.
What could there be in this new relation of the agent which

would be inconsistent with the interests of his former princi
pal, and his continuing duty in respect to the completion of

Finnerty ct al. v. Fritz.
181
-
'
the former sale? We have seen that no duty remains as to a

further or other sale, and that iu respect to such duty he is dis
charged.
The price, terms and conditions of the sale are all
settled, and have been inserted in the bond.
As to these mat
ters no discretion or duty remains. A sale of the property

under the bond to other parties, is contemplated by the bond
itself; hence the act of assisting the obligee in such sale is not
prejudicial to the interests of the obligor; neither does it nec
essarily conict with the consummation of the rst sale, but is
much more likely to be in furtherance thereof, as the effect of
a resale is to realize the money which is to mature upon the
bond.
There is, therefore, nothing inconsistent in the new re
lation; and if the agent may become the agent of the purchas
er in such case, he may for the same reasons, become jointly

interested with the purchaser after the execution and delivery
of the bond, without on that account forfeiting his claim for
commissions. These views are sustained by the following au
thorities: Story on Agency, Sec. 31; Short v. Miller, 68 Ill.
292; Hinclcley v. Arey, 27 Me. 364; ll/[mm et al. v. Burgess,
70 Ill. 604; Wortman v. Skinner, 1 Beasley, N. J. 358; Bock
lert at al. v. McBride, 48 Mo. 506; Pridgen v. Adkins, 25

Texas, 394.
No specic instructions were given upon either of the fore
going propositions, respecting the relations which Fritz sus

tained to the appellants, or his conduct towards them; and in
view of the testimony, we think the jury was not suiciently
advised upon these points. It is true no such instructions
were prayed by the defendants, but the court rejected instruc
tions which were prayed on the subject of appellees miscon
duct, and gave others instead, upon its own motion. In such
case it became the duty of the court, not only to instruct cor
rectly but fully on the subject. The instructions so given
were excepted to, and error assigned thereon, and, as we have

seen, they omit to cover material points upon which the
recovery may have depended.
Referring now to the relations which Fritz sustained to the
182
SUPREME CouRT of CoIORADo.

purchasers, as bearing upon his right to recover commissions,

we are of opinion that the doctrine of public policy was carried
too far in the instructions given on this point. The appellants
were not prejudiced by this error, but in view of the fact that
the cause must be returned for another trial, we deem it proper
to express our views on the point.
The inquiry whether Fritz forfeited his right to claim com
missions by reason of assuming inconsistent relations to the
purchasers, should have been limited to the original con
tract of sale. We have attempted to show that his employers
were not legally interested in any other; that it was a matter
of indifference to them what future contracts should be made,
or by whom they should be made; their remaining interest

was simply the payment of the purchase-money named in the
bond, and if paid, it was wholly immaterial to them whether it
came from the private funds of Davies, from the moneys of
Oviatt & Cooper, or whether it was advanced by the Chicago
parties. Holding as we do, that if Fritz procured his interest
in the bond in good faith after its execution, and not in pursu
ance of a secret understanding or agreement previously made
with Davies, that both Davies and Fritz might enter into any
contract with other parties respecting the property which they
might be able to effect, not inconsistent with the terms of the
bond, it results that such contracts would be separate transac
tions, wholly independent of the original transaction out of
which this controversy has arisen, and between different parties.
It would be foreign to the present investigation to inquire
what relations appellee sustained to such other parties growing
out of subsequent transfers affecting the property. Such in
quiries might become pertinent in a litigation directly involv
ing such transfers, and between the parties thereto.
Whether Fritz occupied the relation of agent to Davies de
pends upon a question of veracity between them, and upon .
this point no error is perceived in the instructions. If Fritz,
concealing from Davies his agency to sell for the owners, in
duced Davies to undertake, in connection with himself, the
183
purchase and sale of the mine under an agreement to divide

between them the profits arising from the transaction, such
facts bring Fritz within the rule of public policy announced
by the court, and avoid his commissions, whether the appel
lants had knowledge of the double relation or not.
We think the court erred in giving to the jury the plaintiff's
sixth instruction. Tatem made no unconditional offer to buy
the mine at the sum of $260,000.
He did not even examine
the mine, and the proof that he would have purchased at this
price was insufficient to authorize the jury in finding that he
was prevented from buying the mine at this sum by the refu
sal of the owners to sell. Whether the verdict was affected by

this instruction or not we cannot know, but it is quite certain
that it was improperly given. For the errors mentioned, the
judgment must be reversed and the cause remanded.
Judgment reversed.
ELBERT, C. J. I concur in the conclusion.
I think, how
ever, that it is indifferent whether Fritz's contract with Davies

was before or after the execution of the bond to Davies.
Its
bearing on the rights and interests of his principal is the same

in either case, and in either case should be taken as an aban
donment of his agency.

The rule, as laid down, points out a method, through the
interposition of a nominal purchaser, by which an agent may
secure not only his commissions as agent, but any advance
over and above the price fixed, for which the property may
sell, thus accomplishing indirectly what he may not do direct
ly. Its effect is to increase the chances of fraudulent practices,
and diminish the security of the relation of principal and
-
agent.
184
Hewitt v. Colorado Springs Co.
HEwiTT v. ColoRADo SPRINGs Co.
Under the Code (Section 338) an appeal to this court on a judgment in the
District Court, rendered on appeal from the County Court, is barred after
ninety days from the rendition of the judgment. When the bar attaches it
cannot be disturbed by subsequent legislation.
Appeal from District Court of El Paso County.

MoTION to dismiss appeal.
Mr. WILLIAM HARRISON, for appellee.
Mr. T. A. McMoRRIs, contra.

ELBERT, C. J.
In the case of Willoughby v. George, decided
at the present term, we held that the act of February 24, 1879,
Sess. Laws 1879, Sec. 38, p. 229, in so far as it allowed a writ
of error to a judgment, in respect to which an appeal was
barred prior to the passage of the act, was retrospective in its
operation, and within the constitutional prohibition of such
laws, and that the writ would not lie.
The motion to dismiss in this case is based upon that ruling.
It is contended, however, by the plaintiff in error, that an
appeal was taken in apt time, and that at the date of the pas
sage of the act in question, the appeal was pending in this

court; that, notwithstanding the subsequent voluntary dismis
sal of the appeal, the bar did not attach, and that the writ
lies.
The judgment was rendered February 26, 1878. At the

date of its rendition, and thereafter until the passage of the
act of February 24, 1879, the only method of review was by
appeal.
Willoughby v. George, 4 Col. 22.
The action was commenced prior to October 1, 1877, the

date the Code went into effect, but as this was a judgment of
non-suit, and did not relate to a franchise or freehold, no appeal
185
Colorado Natl Bank of Denver v. Boettcher.
would lie under the provisions of the Revised Statutes; other

wise, under the rule laid down in the case of Conner v. Conner,
4 Col. 75, the plaintiff in error could have taken his appeal
under either the old or new system.
As it was, his only remedy at the date of the judgment was
by an appeal under the provisions of the Code; and as the
judgment of the district court was on appeal from the county

court, his remedy in this respect was barred after the lapse of
ninety days from the rendition of the judgment. Code, Sec.
338.
The plaintiff in error made no attempt to take and perfect

an appeal under the provisions of the Code; on the other hand,
as the record shows, he sought to take an appeal under the
provisions of the Revised Statutes, under which, as we have
before said, an appeal did not lie.
Whatever effect, therefore, a legally perfected appeal, pend
ing at the date of the passage of the act, might have to take a
case without the rule laid down in Willoughby v. George, first
cited, the attempted appeal in this case can have no such re
sult. The steps taken were without authority of law, and had
no effect as an appeal. The bar attached at the expiration of
the ninety days, and under the constitutional provision referred
to, it cannot be disturbed by retrospective legislation.
The motion to dismiss is allowed.
Dismissed.
THE COLORADo NATIONAL BANK OF DENVER v.

BoETTCHER.
1. The holder of a check drawn against funds cannot maintain an action
in his own name against the drawee who refuses payment, regardless of the
question of acceptance.
2. To warrant the inference of acceptance from conduct, it would seem
186
that the circumstances must clearly indicate such an intention on the part of
the drawee.
.3.
Mere detention does not constitute an implied acceptance, and a condi
tional acceptance is not enforceable until complete fulfillment of the condition.

BoETTCHER, the appellee, filed his complaint in the district
court, alleging substantially that appellant was a barking cor
poration; that on January 31st, 1878, appellant was possessed
of certain moneys of Shackelton & Brinker, co-partners, to be
paid on demand; that on said day Shackelton died, leaving
said Brinker surviving; that about February 2, 1878, appellant
received other moneys for use of said firm, also payable on de
mand; that February 8th said moneys amounted to $1,000;
that on said February 8th Brinker, as surviving partner,
assigned all said moneys, and ordered the same paid over to
appellee; that appellant had notice of such assignment; that
appellee demanded payment, which was refused. Demand for
judgment, etc.
Appellant answered substantially as follows:
Admitted that appellant was a corporation; that Shackelton
and Brinker were partners; that Shackelton died, etc.; and also
admits the assignment as alleged, but avers that knowledge of
the same came to it on the evening of February 8th, about 7
o'clock. Denied that said moneys, or any part thereof, were
held by it to be rendered to said Brinker, or subject to his
order, or that appellant was indebted to said firm of Shackel
ton & Brinker at the time of said assignment to appellee.

Averred that at the time said assignment was made, Shackelton
& Brinker were indebted to appellant in a larger sum of

money than that assigned to appellee; that the same was evi
denced by a promissory note, executed by Shackelton & Brin
ker, dated December 6, 1877, payable sixty days after date, to
appellant, for $1,200, with interest thereon; that said note
matured on February 7, 1878, and prior to assignment to ap

pellee, and that appellee had knowledge of the fact prior to
the assignment.
187
By way of cross-demand, appellant averred that at the time

of the assignment of said moneys, and demand of appellee
therefor, said Shackelton & Brinker, and said Brinker, as sur
viving partner, were indebted to appellant in $1,200 and inter

est, according to the effect and tenor of a certain promissory
note.
Averred that said note became due and payable February 7,

1878; that the whole thereof remained unpaid February 8,
1878, the date of said assignment, and demand for the moneys
in said complaint mentioned; that said sum of money due and
payable on said note is still unpaid; offer of appellant to set

off amount due on said note; demand for judgment.
Afterward the appellee, by leave of court, led his amended
complaint, which substantially alleged, as a second cause of
action:
That on January 28, 1878, appellant was and is a banking

corporation; that Shackelton & Brinker were copartners; that
they made their check in writing, duly stamped, etc., thereby
directing said appellant to pay to appellee or order, $472,,f,;
that January 31, 1878, Shackelton died, leaving Brinker sur
viving; that before said check became due according to its

terms, Shackelton & Brinker, and Brinker, as survivor, paid
to appellant, to meet said check, to be paid thereon, and on
other checks, large sums of money, more than the amount
mentioned in said check; that appellant received the same to
be paid on the checks of Shackelton & Brinker; that appellant,
in consideration of the receipt of said money, agreed to pay

said moneys upon the checks of Shackelton & Brinker, or of
Brinker, survivor; that on February 5th, and on February 7th,
1878, while said moneys were held by appellant, appellee pre
sented said check and demanded payment thereof, and appel
lant refused.
Third cause of action: averments substantially the same as
insecond cause of action, except as to check. Check dated
January 28, 1878, payable to order of appellee, six days after
date, for $453};
188

Fourth cause of action: averments substantially as in sec

ond and third causes of action, except as to check. Check
dated January 31, payable to order of appellee, for $437.62.
Jurat.
The answer of appellant to amended complaint.
Denied that Shackelton & Brinker, or Brinker as surviving

partner, delivered or deposited with appellant large sums of
money to meet or pay the said checks; that it was agreed that
any moneys deposited with appellant were to be paid out on
said checks, or any of them; that Shackelton & Brinker, or
Brinker, etc., deposited with appellant sufficient money to
pay said checks; that on the 5th or 7th of February, 1878,

said parties had deposited with appellant sufficient money to
pay said checks; that appellee presented said checks for pay
ment on the 5th of February, 1878.
Answer alleged as a second defense, by way of cross-demand
or set-off, that Shackelton & Brinker, or Brinker, etc., were

indebted to appellant $1,200, and interest for money loaned,
evidenced, etc., by promissory note, etc.; that Shackelton &
Brinker, or Brinker, etc., did not have a sufficient amount of
money to their credit to pay said note; that at the maturity of
said note the sum to the credit of Shackelton & Brinker, or
Brinker, was about $1,000, which appellant offered to set off,
etc.
Replication: appellee had not sufficient knowledge to found

belief, and asked that appellant be held to prove; that Shack
elton & Brinker, or Brinker, etc., were indebted to appellant,
etc., as evidenced by promissory note, etc., or that said note
matured February 7, 1878, or that they were indebted to appel
lant in any sum whatever.
Upon the trial of the cause the jury, under the direction of
the court, rendered a verdict in favor of the appellee, assessing
his damages at $997.83; a motion for a new trial was interposed
by the appellant and denied, and judgment entered on the

verdict.
Mr. JoHN Q. CHARLEs, for appellant.
Dsosmnnn TERM, 1879.
189
Colorado Nat'l Bank of Denver v. Boettcher.
Messrs. W1;LLs, Snrru & Macon, for appellee.

Bacx, J. The verdict in this case appears to have been
directed for the plaintiff, Boettcher, upon the view of the law
taken by the district judge, that the holder of a check drawn
against funds can maintain an action in his own name against
the drawee who refuses payment, regardless of the question of

acceptance. This is a question upon which courts and law
writers are, to some extent, divided, and much learning has
been expended in the discussion of the opposing views taken.
Each is supported by arguments of great force, and did we not,

from a careful review of all the authorities, deem the ques
tion practically settled against the right of action, we should
consider it a close and serious question. But every conceiv
able phase of the question has been discussed; every objection
to the rule denying the right of action has been duly consid
ered, and the rule having been adopted and followed by courts
of the highest authority upon questions of commercial law,
that a right of action does not exist where there has been no
acceptance or promise to pay, we do not hestitate to accord to
the adjudication the force of an established precedent.
The
subject has been so exhaustively considered by these authori

ties, that it is only necessary for us to cite them in support of
the rule. Bank of Republic v. Millard, 10 Wallace, 152;
First National Ban]: v. Whitman, 4 Otto, 343; Carl v.
lVatz'0nal Security Bank, 107 Mass. 45; Elm ZV. B. v.
Fourth IV. B. 46 N. Y. 82; Case v. flenxlerson, 23 La. Ann.
49; Moses v. Franklin Bank, 34 Md. 580. Other authorities

are referred to in the cases cited.
But counsel for appellee rely mainly for an airmance of the
judgment, upon the proposition that the evidence shows an
acceptance on the part of the bank.
If this be true, then all the authorities are agreed that the
check-holder may maintain his action in his own name against
the drawee. It is not pretended that there was an express
acceptance, but it is insisted that the conduct of the oicers of
190
SUPREME Comm: on COLORADO.'

'
the bank was such as to amount to an implied or conditional

acceptance.
Reference is made to 1 Daniels Neg. Inst. 499, where it is

said that keeping a bill a considerable length of time without
returning an answer, may, under some circumstances, be consid
ered an acceptance. The doctrine is qualied in the text as
follows: Especially if the\drawee be informed that the delay
will be so considered, and there be an inference from the lan
guage of the drawee that he intended an acceptance. These

cases have been decided upon special circumstances, and as a
general rule, the mere detention for an unreasonable time is
not considered as amounting to an acceptance.
To warrant the inference of acceptance from conduct, it

would seem that the circumstances must clearly indicate such
an intention on part of the drawee. Thus, if he be informed
that a detention of the check or bill will be so construed, and
he thereafter detain it, an intention to be bound as acceptor is
implied.
In the case of Jeane v. Ward, 1 B. & Ald. 653, the bill was
left for acceptance May 29, and retained until the 9th day of
July, a period of forty-one days, when the drawee destroyed
it. He had previously refused to accept it, but the case does
not disclose the time of refusal. Lord Ellenborough was of
opinion that having detained the bill an unreasonable length
of time before certifying his refusal to accept, he should be
held liable. The other judges were of different opinions, how
ever. They considered that the bill having been left with the
drawee for acceptance, and not sent by letter, it was the duty
of the party leaving it to call for it and inquire whether it
was accepted, and not the duty of the drawee to send it back;
also, that having refused to accept before destroying the bill,

the act of destroying could not be construed as an act of ac
ceptancc.
In Mason v. Barf, 2 B. & Ald. 26, the bill was sent to the
drawee by letter, with a request to accept and return. It was

detained ten days, and at this time the drawee notied the pay
\
191
ees that it was not accepted, because the carriers receipt for
the wool against which it was drawn had not been received,
and offered to return it. He likewise stated that the bill was
retained by request of the drawers, to hold it until their in.
voice was received.
No answer being received from the pay
ees, it was' held sixteen days longer and then returned.
recovery was insisted upon on the ground that the bill had
been detained an unreasonable length of time, and that the
detention had been at the request of the drawers and without
the consent of the payees. Held, that the plai.nti' could not
recover. The circumstances showed that there was no inten
tion to accept until the invoice or carriers receipt was re

ceived, and the condition never having been satised, no lia
bility was incurred.
In Harvey v. illdrtin, 1 Camp. 425, the bill was sent to the

drawee with request to accept and send it to the payee. Two
weeks afterwards, the request not having been complied with,
the drawer again wrote the drawee, asking him to accept and
return the bill, adding that detention would be considered as

equivalent to acceptance. Some time after this the drawee
wrote that he had intended to accept the bill, but now refused,
as he had no funds of the drawer in his hands. Held, the

drawee was liable as acceptor.
In Koch .v. Howell, 6 Watts & Serg. 350, it was held that
the retention of an order until the trial was not conclusive
evidence of acceptance, but a question of fact for the jury,
since the retention was subject to explanation.
The doctrine of all the authorities cited is that mere deten
tion does not constitute an implied acceptance, and that a con
ditional acceptance is not enforceable until complete fulllment
of the condition. See Byles on Bills, 191-193; Parsons on
Notes and Bills, 284; Edwards on Bills and Prom. Notes, 418;
Liggett v. Weed, 7 Kansas, 273.
The longest detention in the case at bar was for the space of
six days. The drawees were not notied that a detention would
be considered equivalent to acceptance.
There was no promise
192

C. C. R. R. Co. v. Lea et al.
to pay any of the checks. Until the day on which they were
returned, there was not, at any time, sufficient funds on deposit
to the credit of the drawers to pay the two checks on which
judgment was entered. The act of returning the checks to the

Union Bank of Greeley cannot be construed as an intention to
accept, for no such intention is indicated, either by the act itself
or as taken in connection with the letter of the cashier accom
panying the checks; and as regards the explanation of the de
tention, given by the president of the bank as a witness upon

the trial, viz: that he supposed they would put up money to
meet the whole of them, we cannot assent to the proposition
that it is equivalent to a promise previously made, to pay when
in funds.
If the language of the president be formulated into a prom

ise, it would be a promise to pay on condition that the drawers
furnished sufficient funds to pay all three of the checks; and
since the requisite deposit was never made, the condition was
not fulfilled and no liability was incurred. Liggett v. Weed,
supra; Wintermute v. Post, 4 Zabriskie, 420.
We are of opinion that the judgment cannot be sustained on
the ground of an implied promise on the present testimony,
either upon the authority cited or upon principle. As further
testimony affecting the conduct of the appellee may be pro
duced upon another trial, the judgment will be reversed and
the cause remanded.
I'eversed.
THE ColoRADo CENTRAL R. R. Co. v. LEA ET AL.

Under the Constitution (Sec. 2, Art. 11), neither the State, nor any county,
city, town, township or school district, can make any donation or grant to, or
in aid of, or become a subscriber or shareholder in any corporation or com
pany.
193

Mr. A. H. DE FRANCE and W. A. HARDENBRook, for plain

...tiffs in error.
Mr. L. C. RocKwBLI, Mr. B. L. CARR and Mr. PERCY AUs

TIN, for defendants in error.
ELBERT, C. J. June 12, 1872, the Board of County Commis

sioners of Boulder county subscribed $200,000 to the capital
stock of the Colorado Central R. R. Co., and upon that day
ordered and called an election of the legal voters of the county,
to be held on the 17th of July of that year, for the approval
of said subscription to the stock and the issue of the bonds of
the county for that amount therefor.
At the election the legal voters of the county approved of
such subscription, and upon the 13th of March, 1873, the Col
orado Central R. R. Co., acting in pursuance to the contract
and subscription aforesaid, issued and delivered to Boulder
county 2,000 shares of stock in said company of $100 each.
On the 16th of April, 1873, the Board of Commissioners of
Boulder county issued and delivered to the Colorado Central
Railroad Company $100,000 in Boulder county bonds, and on
the 19th of April they issued to said railroad company the
other $100,000 of said bonds.
Boulder county received the shares of stock, and retained

the same as its property until about the 12th of June, 1877,
when, in pursuance of the following agreement, the stock was
placed in the hands of C. G. Buckingham, to hold as trustee.
The agreement is as follows:
WHEREAs, The Colorado Central Railroad Company has

made contracts for constructing an extension of its line of road
from Longmont, by way of Fort Collins, to a connection with the

Union Pacific Railroad at Cheyenne. Now, therefore, it is
Resolved, That the county of Boulder hereby agrees to do
13
194

nate to the Colorado Central Railroad Company the 2.000

shares of stock in said Colorado Central Railroad Company
now held by this county, upon the completion of said exten
sion and making of said connection, and the running of freight
and passenger trains thereon; Providerl, said extension be_

made and said connection completed, and freight and passen
ger trains for the accommodation of the public be actually run
ning thereon on or before the rst day of December, A. D.

1877; and provided, also, that Boulder county shall have the
right to vote said stock at all meetings of stockholders of said
company until said donation is actually made, and that said
Colorado Central Railroad Company take said stock and hold
this county harmless from all litigation which may arise from
said donation; and also provided that the time above specied
shall be the essence of this agreement; and if said extension
and connection is not made and completed, and trains running
thereon as aforesaid, by said rst day of December, 1877, then
Boulder county will not donate its said stock as aforesaid.
Resolved, That the certicate for said stock now held by
Boulder county be placed in escrow with Charles G. Bucking
ham, Esq., of the county of Boulder, to be held by him until
said rst day of December, A. D. 1877, or until the comple
tion of said extension of said railroad and said connection and
the running of trains thereon as aforesaid, if made and done

on or before the date aforesaid, and that said Charles G. Buck
ingham, Esq., be, and hehereby is instructed in case said ex

tension and connection shall be completed and trains running
thereon, as aforesaid, on or before the above mentioned date,
immediately thereafter to deliver said certicate to the said
Colorado Central Railroad Company; but if said extension and

connection shall not be completed and trains running thereon,
as aforesaid, on or before said rst day of December, 1877,
then on the morning of the second day of December, 1877, he

shall return said certicate to the treasurer of Boulder county,
and his duties in the matter shall terminate.
Resolved, That a copy of these resolutions be delivered to
195
said Charles G. Buckingham, Esq., together with said certifi

cate, for his instruction and guidance.
Resolved, That the Chairman of the Board of County
Commissioners be, and he hereby is authorized to assign said
stocks and certificates to the said Colorado Central Railroad
Company, in the name and in behalf of Boulder county, any

time when or after the same may be properly delivered to
said Colorado Central Railroad Company under and in pursu
ance of the foregoing resolutions.
Resolved, That A. R. Stewart. Esq., County Treasurer, be,

and he is hereby requested to deliver the certificate for 2,000
shares of stock in the Colorado Central Railroad Company,
owned by Boulder county, now in his hands, to J. C. Hummel,
Esq., to be by said Hummel placed in escrow, in accordance
with resolutions this day passed, and said Hummel's receipt
for said certificate shall be a sufficient voucher to the said
treasurer therefor.
Resolved, that J. C. Hummel, in placing said certificate in

escrow with C. G. Buckingham, Esq., shall take said Bucking
ham's receipt therefor, and file said receipt with the county
clerk.
The stock having been delivered to Buckingham in pursu

ance to the said agreement and resolutions of the Board of
Commissioners, the defendants in error, on October 26, 1877,
presented to the judge of the second judicial district, their bill

of complaint asking for a temporary injunction, restraining
said Buckingham from delivering the certificate of stock, and
enjoining the company and all persons acting in its behalf
from receiving the same. The judge made an order granting
the injunction, agreeable to the prayer of the complaint.
To the answers filed by the plaintiffs in error, demurrers
were interposed which were sustained by the court, and a
decree rendered as prayed for in the bill of complaint.
The validity of the contract entered into by the Board of
County Commissioners, and embodied in the resolutions above
set forth, is the substantial question presented by the record.
196
SUPREME GoUnT or COLORADO.

Section 2, article 11, of the Constitution, provides that

neither the State, nor any county, city, town, township or
school district shall make any donation or grant to, or in aid

of, or become a subscriber or a shareholder in any corporation
or company. * * *
The agreement, not only in its language but in substance, is
a donation by the county of Boulder to, and in aid of, the
Colorado Central Railroad Company, of the 2,000 shares of
stock belonging to the county. Although conditional in the

rst instance, it became by its terms complete and absolute
upon performance of the conditions.
That the construction of the proposed line of railroad would

be of great benet to the county and its citizens; that it would
give them increased and superior facilities for traic and com
merce with both the Atlantic and Pacic seaboards, do not
make it any the less a donation within the intent of the inhi
bition.
These and similar considerations of public benet and ad
vantage, had constituted for years, under; our territorial gov
ernment, the basis of appeals for and grants of county and
municipal aid to railroad companies, and it was undoubtedly
the intention of the framers of the Constitution, whether
wisely or not, to prohibit, by the fundamental law of the new

State, all public aid to railroad companies, whether by dona
tion, grant or subscription, no matter what might be the pub
lic benet and advantages owing from the construction of
such roads. I understand the framers of the Constitution and
the people who adopted it, to have intended by this provision
the declaration of a broad policy of prohibition, forbidding

State, county and municipal aid to railroad and other com
panies in any of the modes specied.

If the existence of a public benet is to give such an agree
ment the character of a sale of the stock, and take it out of
the constitutional prohibition, then the prohibition is utterly
nugatory and valueless, as such consideration would exist in
every probable case.
\Ve consequently regard the agreement
APRIL TERM, 1880.

C. C. R. R. Co. v. Holmes.
197
as within the constitutional prohibition, and as without va

lidity.
Again, the effect of the provisions of the act under which

this stock was subscribed and bonds issued therefor, R. S. p.
134, Sec. 53, as well as the effect of the provisions of the later
acts, Sess. Laws 1876, pp. 50, 51; Gen. Laws 114, Sec. 3, is
to devote this stock to a specific use, namely, the liquidation
of the bonds voted and issued therefor, and there was no power
in the Board of County Commissioners to divert the stock from
this statutory use.
The decree of the court below is affirmed with costs.
Affirmed.
Mr. Justice BECK did not sit in the case.
THE COLORADo CENTRAL R. R. Co. v. HoLMES.

1. The general rule as to contributory negligence, which seems to be es
tablished, is that if the party injured, by the exercise of ordinary care under
the circumstances, might have avoided the consequences of the defendant's
negligence, but did not, the case is one of mutual fault, in which the law will
neither cast all the consequences upon the defendant, nor will it attempt any
apportionment thereof.
2. And where the plaintiff himself so far contributes to the injury by his
own negligence or want of care, as that but for such fault on his part the in
jury would not have happened, he is not entitled to
recover) unless the de
fendant, by the exercise of care on his part, might have avoided the conse-quences of the negligent conduct of the plaintiff.
3. As a rule, the existence of negligence is a question of fact for the jury,
but it is otherwise when the facts are not in dispute, or when the negligence
or its absence is evident and unquestionable. In such case the court may
/
declare the fact established as a matter of law.

CATHARINE Hol.MEs, the appellee, brought her action in the
District Court against the appellant for personal injury sus

tained by her while walking on the track of appellant, and re
| covered judgment for $5,000. To reverse that judgment this
198
SUPREME Counr or Conosano.

appeal was prayed; the facts necessary to a proper understand

ing of the case are stated in the opinion.
Messrs. H. M. & W. TELLER, and Mr. A. H. DE Fumes, for
appellant.
Messrs. Pxrrassou and CAMPBELL, for appellee.
are
Sronn, J. In treating upon the right of redress for injuries

caused by the negligence of another, Mr. Cooley, in his recent
work upon Torts, says, p. 659__:__9The rst requisite in establish
ing negligence is to show the existence of the duty which it is

supposed has not been performed. A duty may be general and
owing to everybody, or it may be particular and owing to a
single person only, by reason of his peculiar position. * * *
But a duty owing to everybody can never become the founda
tion of an action until some individual is placed in a position

which gives him particular occasion to insist on its perform
ance; it then becomes a duty to him personally. The general
duty of a railway company to run its trains with care, becomes
a particular duty to no one until he is in position to have a
right to complain of the neglect. The tramp who steals a ride
cannot insist that it is a duty to him; neither can he when he
makes a highway of the railway track and is injured by the

train. * * * These areillustrations; but in every instance the
complaining party must point out how the duty arose which is
supposed to have been neglected. And this is the real reason
why one cannot complain of an injury to which his own negli
gence has contributed; when it appears that but for his own
fault the injury would not have occurred, it also appears that
the duty to protect him did not rest upon others; for no one is
under obligation to protect another against the consequences

of his own misconduct or neglect.
The general rule as to contributory negligence, which seems
to be established by the authorities, is that if the party injured !
by the exercise of ordinary care under the circumstances,
might have avoided the consequences of the defendants negli.
Aran. TERM, 1880.
199
gence, but did not, the case is one of mutual fault, in which
the law will neither cast all the consequences upon the defend
ant, nor will it attempt any apportionment thereof. This is
the English rule, and it has been accepted by the courts in this
country, with but few exceptions. Cooley on Torts, 674.
The
cases cited in support of this rule are very numerous, embrac
ing most of the States in the Union, and the Supreme Court
of the United States.
The later Illinois cases have departed from the rule, to the
~Xt6!1t of allowing a right of action to depend upon the relative
degrees of negligence to be imputed to plaintiff and defend
ant respectively; that is to say, that a plaintiff whose con
urrent negligence has contributed to the injury, may re \
cover where the negligence of the defendant is gross, and in
-omparison to which that of the plaintiff is slight. Ill. Cent.
13.13. v. II/zmmer, 85 Ill. 526; Kansas is perhaps the only
other_ State that seems to follow the Illinois doctrine. U. 1.
R. R. v. Rollins, 5 Kan. 167; Cooley on Torts, p. 678:
That there is a difficulty in measuring, in every case, degrees

of negligence in order to constitute legal denitions, even as
they were divided by the Roman civil law, into slight, ordinary
and gross, is suflicien tly obvious, and the attempt to x and
usefully apply these degrees in practice, has been criticised by
the Supreme Court of the United States. Steamboat New

World v. Kzfztg, 16 How. 474. But this difficulty falls little
short of impossibility when it is sought to establish and measure
relative degrees of the negligence of' plaintiff and defendant
involving acts of different parties differently circumstanced,
reviewing causes and effects from different standpoints, and
that perhaps in view of impending danger, and with different
means of avoidance, and all these complications of causes and
effects and comparisons of unlike acts, and the negations of
care which constitute different degrees of negligence, to be
nicely measured, adjusted and apportioned by a jury of total
ly different minds. The scales of justice can neither separate
and weigh the atoms of care and negligence as ingredients of
200

human conduct, like a chemical analysis, nor determine their

unknown quantities by algebraic equation.
The simplest rule applicable, deduced from the great mass
of authorities, English and American, is stated quite clearly
by Wightman, J., in Tuft v. Warman, 5 C. B. N. S. 584, in
f these words: It appears to us that the proper question for the

jury in this case, and indeed in all others of the like kind, is
X },
|
whether the damage was occasioned entirely by the negligence

or improper conduct of the defendant, or whether the plaintiff
himself so far contributed to the misfortune by his own negli
gence or want of ordinary and common care and caution, that
but for such negligence or want of ordinary care and caution
on his part the misfortune would not have happened. In

the first case the plaintiff would be, entitled to recover, in the
latter not; as but for his own fault the misfortune would not
have happened/ mere negligence or want of ordinary care and

caution would not, however, disentitle him to recover, unless
it were such that, but for that negligence or want of ordinary
care and caution, the misfortune could not have happened;
nor, if the defendant might, by the exercise of care on his part,
have avoided the consequences of the neglect or carelessness
of the plaintiff.
The same rule, substantially, was adopted by our own court
in the case of the Western Union Telegraph Company v.

Eyser, 2 Col. 141. Such, too, is the doctrine of the Supreme
Court of the United States. Iailroad Company v. Jones,
5 Otto 442.
Applying the rule to the case at bar, the questions to be

determined are:
First. Was the injury occasioned entirely by the negligence

or improper conduct of the defendant ?
Second. Did the negligence or want of ordinary care and
caution on the part of the plaintiff so far contribute to pro

duce the injury that otherwise the misfortune would not have
happened ?
Third. Might the defendant, by the exercise of care on the
APRIL TERM, 1880.
201
part of its servants, have avoided the consequences of the

neglect or carelessness of the plaintiff ?
The evidence shows that the plaintiff, a laboring woman

about fty years of age, living near the track of the defendauts
railway in the suburbs of Denver, started in the day time to
go to another part of the town to work. Her course lay along
and across the line of the said railway. It was about the
time of the arrival of a morning freight train. She knew the
train came in at that hour. She had frequently been that way
at the same time of day on previous occasions. She reached
the track at a point whence she could see along it in the
direction of approaching trains a distance of a quarter of a
mile. She went upon the railway where there was no public
crossing, and where there were several side-tracks, diverging
and running parallel with and near the main track, into the
defendants depot and trainyard. She turned her back upon
the approaching train, and proceeded to walk along upon the
railroad track. She heard the whistle, turned and saw the
train coming; left the main track upon which she saw the
engine approaching, crossed diagonally to the next track, and
after going upon that a short distance, crossed to the third

track and proceeded along it, walking on the ties.- She pres
ently heard shouts, looked around, and was struck by the for
ward ear ofa part of the train that had been switched off from
the main track by a running switch. She had walked three
or four hundred feet on the tracks before being struck. At
the place where she was struck there were four tracks of the
railway, thirteen to seventeen feet apart, and within the de
fendant railway companys yard or switching ground.
At this point in the testimony, we may pause to consider
the rst two questions above stated.
The act of the plaintiff in going upon the railway track and
deliberately using it for a foot-path at a time when she knew
that engines and cars were likely to come in behind her; at a
place where there was no road or street-crossing for public use;
in the midst of a net-work of tracks and switches; upon the
2()2

defendant's private yard grounds, used for the purpose of run

ning trains in and out, and switching cars on and off the various
side tracks in depositing freight and making up trains in and
about the depot: this act of the plaintiff, we say, was in itself,
gross and culpable negligence. It was obviously a want of

ordinary care in the presence of impending and reasonably
anticipated danger, and was, as the facts clearly show, such

negligence as contributed directly to produce the resulting in
jury. Illinois Central R. R. Co. v. Hall, 72 Ill. 222.
The first question then, is disposed of; the injury was not
caused by the negligence of the defendant alone.

Was the negligence of the plaintiff such as that but for it
the misfortune to her could not have happened? This question
must be answered in the affirmative. She was without right
in going upon any of the tracks at that time and place and
walking upon them in the manner she did. That the accident
could not have happened had she not so gone upon the track,
is self-evident.
It follows that the only other state of facts under which the
plaintiff is not disentitled to recover, is where the defendant
might, by the exercise of care on its part, have avoided the
consequences of the negligence of plaintiff.
The consequences of plaintiff's negligence placed her in a
position of immediate danger in front of the moving cars by
which she was struck, and the accident itself was the ultimate
of such consequences. Could the defendant, by the exercise

of care, have averted these consequences?
According to the testimony of all the witnesses to the point,
the plaintiff, after leaving the main track to get out of the way
of the engine, and stepping on to the track upon which the
freight cars were switched, was not over seventy-five feet from
the forward cars of the train approaching her. There were
two brakemen on these cars, one of whom was on the car in
front. By them the plaintiff was seen to have apparently

heeded the warning whistle, and to have left the first point of
danger. She was then turning her course to one side; that is
APRIL TERM, 1880.
203
to say, she was walking diagonally along and across the track,
as though intending to get off.
She testifies herself that she
was then trying to get off all the tracks. From her move
ments the brakemen had strong reason for presuming that she
would get out of the way before they reached her. She had
reached the outer side of the rail upon one side of the track,
walking on the ends of the ties, so that when struck she was
thrown off the track, falling under the side of the car toward
town, in the direction she was going When within fifteen or
twenty feet of her, the brakeman on the forward car hallooed
at her, and the brakes were put down; she heard the shouts,
looked round, and was immediately struck.
The testimony of the railroad experts as to the distance
within which the train could be stopped is, that if moving at
the rate of five miles an hour, it could be stopped in the train's
length, a distance of from 450 to 600 feet; but if running from
ten to twenty miles an hour, it could not be stopped short of a
quarter of half a mile, there being in this case a slightly down
grade.
.
The train was in fact stopped in less than 400 feet from the
point where plaintiff was struck. It is quite evident that the
train could not have been stopped between the time plaintiff
got upon that track, and the time she was struck. In other
words if the brakemen had seen her the instant she left the
main track, and walked over to and upon the side track, and
they had immediately set the brakes within reach, the train
could not have been stopped before reaching her; the inter
vening distance being less than one hundred feet, or about one
third the length of the train. At the rate of speed which the
evidence fairly establishes, the train passed over about seven
feet every second of time. It could not have been stopped in
less than thirty seconds. The plaintiff had only three or four
seconds to get out of the way when she heard the shout of the
brakeman on the front car. One or two steps to one side
would have placed her beyond reach of the passing cars.
These steps could have been taken in as many seconds. As
204
SUPREME CouRT OF COLORADO.

C. C. R. R. Co. v.
Holmes.
she had only to spring to one side to avoid the danger, it was
barely possible for her to do so if she was in a condition to
act instantly, but the sense of impending danger often para
lyzes for a moment, when that moment is fatal.
The evidence shows no wanton or willful negligence or in
difference in respect to the plaintiff on the part of the defend
ant. She was not wantonly run down by the cars.
In the view we take of the case, under the rule laid down
touching contributory negligence, we have not considered the

question of negligence on the part of the defendant that is
raised respecting the making of the running or flying switch
as affecting the case, since:
First. The testimony touching the character and practice
of running switches at other places or on other roads, was
wholly incompetent; and
Second. That such mode of switching was used by the de
fendant on this occasion, that it was not a departure from for
mer usage in making switches at the point in question, that

it was at a place where there was no street or other public
crossing, and the absence of any law or ordinance forbidding
or regulating its use, present such a state of facts as that it
cannot be said to have been negligence per se.
Nor do we regard the evidence which was introduced on the
part of plaintiff for the purpose of showing that other per
sons than the plaintiff had previously been in the habit of
passing over and walking along the track at that place, and
that even school children residing in the vicinity had used
the track there for a footpath, sufficient to either lessen the
degree of negligence on the part of plaintiff, or interpose a
greater burden of care upon the defendant.
In this case there is an absence of proof that such use of the
track was known to the defendant. But even with such proof
the facts are insufficient to establish a user by the public, or
to show that at that time, or previously, there was either a

thoroughfare across or along the track, or that there was a
crowd, or a considerable number of persons whose presence
was to be anticipated and guarded against.
APRIL TERM, 1880.
205
This is unlike the case of the Kansas Pacific Railway v.

Ward, in 4th Colorado, cited by counsel for plaintiff, where
during Fair time, a crowd of pedestrians was constantly
passing along the line of the railway to and from the fair
ground; the railway company itself engaged in running ex
cursion trains between the city and the fair, and where the
injured person was struck by a projecting timber from a neg
ligently loaded car, while he had approached the side of the
track for the purpose of rebuing a child which he thought to
be falling from one of the windows of a passing excursion train.
In view of the gross and culpable negligence of the plaintiff

in going upon the track at that place, and walking along it as
she did, and the failure to show such want of care on the part
of the defendant as that it might have avoided the accident
notwithstanding the negligence of plaintiff, as the evidence is
presented by the record, there can be no recovery, and the ver
dict was clearly against the evidence, and against the instruc
tions of the court upon the rule we have chiefly discussed.
The court below correctly instructed that the negligence of
plaintiff was in itself culpable, and that she could not recover
unless the defendant wantonly caused the injury when it might
by proper care have avoided it.
As a rule the existence of negligence is a question of fact
for the jury; but it is otherwise when the facts are not in dis
pute, or where the negligence or its absence is evident and un
questionable.
In such case the court may declare the fact established as a
matter of law; in like manner as many conclusions from given
facts, settled by repeated decisions of the courts, acquire the
force and effect of legal propositions, and are to be so declared
by the court. Cooley on Torts, 670; Shear. & Red. on Neg. Sec.
11; Pittsburg R. R. Co. v. McClerg, 56 Pa. St. 294; Pittsburg
I?. R. Co. v. Andrews, 39 Md. 329; I. d C. R. Co. v. Ruther
ford, 29 Ind. 82; Todd v. Old Colony R. R. 3 Allen 18.

The judgment is reversed and the cause remanded.
I'eversed.
206
SUPREME Comm OF COLORADO.

THE COLORADO Seamus Co. v. Horxms.

1. While this court will not review a. judgment upon the testimony when
an exception to the judgment has not been reserved at a trial to the court. it
will consider errors assigned based upon exceptions duly reserved during the
progress of t-he trial.
2. In an action on areplevin bond for the delivery of the property in case
the return thereof shall be awarded," the breach assigned must be as broad
as the condition of the bond ; to allege a failure to deliver, merely, held bad
on demurrer.
'
3. The same matters litigated in a replevin suit may not be re-examined

in a suit upon the replevin bond.

THE plaintiff below, in its complaint, alleged: that it was a
corporation; That about the rst day of April, A. D. 1876,

the defendant, Robert L. Hopkins, leased from plaintiff the
following described property, to-wit: The hotel known as
The Manitou House and appurtenances, situated in block
C, in the town of Manitou, in the county aforesaid, together
with certain furniture and other personal property in and about
said premises; that pursuant to said lease said Hopkins then
and there entered upon said premises _and took possession of
said chattels.
That said lease terminated on the rst day of April, A. D.

1877, and that the plaintiff then and there and on said day
became entitled to the possession of said premises and of said
chattels; that on the day last aforesaid, and after the expira
tion of said lease, the plaintiff on the premises aforesaid de
manded of said Hopkins possession of said premises and chat
tels; that said Hopkins then and there refused to give posses
sion of said premises, and refused to give possession of said
chattels to plaintiff; that plaintiff, at divers other times and
places, demanded possession of said property; that said Hop
kins always refused to give possession thereof to plaintiff, al

though said Hopkins then and there well knew that by t-he
terms of said lease the plaintiff was then entitled to the pos
APRIL TERM, 1880.
207
session of said property; that thereupon and on the twenty

sixth day of May, A. D. 1877, the plaintiff sued out of the
District Court of El Paso County, in the third judicial district
of the State of Colorad7, a writ of replevin against said Hop
kins for the recovery of said chattels; that pursuant to said
writ, Peter Becker, the sheriff of said county, to whom said
writ was directed for service, took possession of said chattels;
that after the seizure of said chattels under said writ, as afore
said, the said Hopkins being desirous of retaining the same,

the defendants executed and delivered to said sheriff their
bond or obligation in writing, which bond was given pursuant

to statute, to enable the defendant, Hopkins, to retain posses
sion of said chattels, which said chattels are specially enumer
ated in said bond, whereby defendants acknowledge themselves
to be bound unto said Becker as such sheriff, in the penal sum
of seven thousand eight hundred and twenty dollars, for pay
ment of which they bound themselves, their heirs, executors
and administrators, jointly and severally.
That under said bond there is a condition written, which condi
tion, together with the signatures and seals of the defendants and
sheriff's approval, is in words and figures following, to-wit:
And whereas, the said Hopkins desires to retain possession
of the said goods and chattels until the final determination of
the said action of replevin. Now, if the said Hopkins shall
pay all costs which have accrued or may accrue in this said
action of replevin, and deliver said property to the said Colo
rado Springs Company, in case return thereof shall be awarded,
and pay all damages that may accrue to said plaintiff, The
Colorado Springs Company, by reason of the unlawful deten
tion of the said property, then this obligation is to be void,
otherwise to remain in full force and effect.
R. L. HoPKINs,
[SEAL.]
A. D. CRAIGUE,
D. J. MARTIN,
[SEAL.]
[SEAL.]
[SEAL.]
CHAs. WALKER,
[sEAL.]
CHARLEs R. BISSELL, [SFAL.]
JoHN H. BACON,
208

Approved and accepted by me, on this 29th day of May, A.

D. 1877.
PETER. BECKER, Sheri".
That said bond was on the twenty-ninth day of May, A. D.

1877, and after the seizure of the chattels therein specied,
accepted and approved by said sheri', who thereupon and then,
and by reason of the execution and acceptance of said bond,
redelivered said chattels to said Hopkins, who held possession
thereof thenceforth and until the eighth day of September, A.
D. 1877. That said Hopkins took possession of said hotel and

chattels under one and the same lease, and that by the terms
thereof plaintiff was at the time of the issuance of said writ

entitled to the possession of said hotel and chattels.
That said chattels so replevied, as aforesaid, comprised the
entire furniture and other personal property used in and about
the running of said hotel; that by reason of the redelivery of
said chattels and the detention thereof as aforesaid, the plain

tiff was deprived of the means of operating said hotel for the
space of several months; that upon the redelivery of said
chattels to said Hopkins as aforesaid, the said Hopkins opened
said hotel for the accommodation of guests; that by the rede
livery of said chattels as aforesaid, said Hopkins was enabled
to retain possession of said hotel and appurtenances, and there
by prevented plaintiff from using or in any manner disposing
of said premises and chattels, and from enjoying the rents and
prots thereof; that said hotel can be operated protably only
during the time known as the summer months of May, June,
July, August and September; that during the said months in
the year A. D. 1877, said Hopkins wrongfully detained said
chattels and premises from the plaintiff, and realized as prots
from the said business the sum of four thousand dollars; that
during a term of said district court begun and held at Colora
do Springs, in the month of October, A. D. 1878, the same

being a regular term of said court, the said action of replevin
was tried upon the 1ssues therein joined; that on such trial
the plaintiff obtained a verdict upon which a judgment was en
J
APRIL TERM, 1880.
209
tered to the effect that plaintiff was at the time of the issuance
of said writ of replevin entitled to the possession of said chat
tels; that plaintiff upon said trial also recovered damages for the
detention of said chattels after demand therefor and before the
issuance of said writ to the amount of one dollar and for costs of
suit, amounting to the sum of fty dollars and eighty cents,
That about the eighth day of September, A. D. 1877, and

after the running of said hotel for that year had ceased to be
protable, the said Hopkins voluntarily delivered said hotel
and part of said chattels to plaintiff, but failed to deliver the

whole thereof.
First cause of action: That said Hopkins has not paid said
judgment for costs so recovered against him, as aforesaid, nor
any part thereof.
Second cause of action: That said Hopkins has not deliv
ered to it the whole of said chattels, but failed to delivera por
tion of said chattels, amounting in value to the sum of ve

hundred dollars.
Third cause of action: That it has incurred expenses in and
about the recovery of said chattels and in and about obtaining
said judgment amounting to the sum of three hundred dollars.
Fourth cause of action: That by reason of the unlawful de
tention of said chattels by said Hopkins after the giving of said
bond, as aforesaid, plaintiff has sustained damages in the sum
of four thousand dollars.
That no part of said sums so due has been paid.
Plaintiff demands judgment against defendants for the sum

of ve thousand dollars, and for interest and costs.
Mr. WILLIAM Hsnmson, for plaintiff in error.

Mr. J. L. WILLIAMS, for defendant in error.
Bncx, J. This was an action upon a replevin bond executed

with sureties by the defendant in the replevin proceeding,
Robert L. Hopkins, under the act of 1876.
Sess. Laws 1876,
p. 116.
14
210

Colorado Springs Co. v. Hoplcins.
The complaint sets out four separate causes ofaction, alleging

as many breaches of the conditions of the bond. A demurrer
was sustained to the second, third and fourth causes of action.
The plaintiff in error abided by its complaint, and the defend

ants failing to answer to the rst cause of action, in compliance
with a rule of court, judgment ni/lil dicit was given thereon.
The errors assigned question the correctness of the rulings
in sustaining the demurrer.
A preliminary question is raised by the defendants in error,
whether the pla.intifl' in error has any standing in this court,
no exception having been reserved in the_ court below to the
nal judgment.
Several decisions of this court are cited to show that in such
case the judgment is not the subject of review here. The
cases, however, only go to the extent of holding that where no
exception is saved to the judgment, in a cause tried to the
court without a jury, such judgment cannot be reviewed upon
the evidence. These decisions were based upon a construction

of-section 2-L, chapter 70, R. S., the former practice act. The
same provisions were re-enacted by the legislature, February
2-1, 1879, and are in force. Session Laws 1879, page 225.
In Patton v. Uoen c Ten Broecke C. li[. Company, 3 Col.

265, this court, in construing the statute referred to, held that
while it precluded the review of a judgment upon the testi

mony where an exception to the judgment had not been re
served at the trial, it did not operate to prevent the considera

tion of errors assigned, based upon exceptions duly reserved
during the progress of the trial; and that all assignments of
error based upon exceptions properly taken at the trial may be
considered by the Supreme Court in such case. We are not,
therefore, precluded from considering the errors here assigned,
and will proceed to review the rulings of the court below upon
the demurrer to the complaint.
The second cause of action was for failure to return a por
tion of the property. The demurrer was probably sustained
to this cause of action, because it did not appear from the
APRIL TERM, 1880.
211
Colorado Springs Co. v. Hopldns.
complaint that an order was entered for a return of the prop

erty. \Ve think such order was necessary before there could
be a breach of this condition of the bond. The condition was:
And deliver said property to the Colorado Springs Company,

in case return thereof shall be awarded.
The act of 1876 was
amendatory of or supplemental to the general law on the sub

ject of replevin as it existed in Chap. 74, R. S.; the failure of
the amendatory act to prescribe the form of judgment did not

operate to prevent the district court from entering a proper
judgment to effectuate the intent and purposes of the act.

That it contemplated an order for the return of the property
where the plaintiff was successful in his suit, is apparent from
an inspection of the rst section, which prescribes the condi
tions of the bond. The judgment, as set out in the complaint,
is defective in this particular. The property, being in the
possession of the defendant, Hopkins, at the time of trial of
the replevin suit, if the right of possession was then in the
plaintiff in error, the judgment should have provided for its

return.
There can be no breach of the condition of the bond
in such case until a return is awarded, for this is the letter of
the condition. The order necessarily precedes the breach of

the condition. The condition was to deliver the property in
case return thereof shall be awarded. The breach alleged is
simply a failure to deliver. The breach assigned not being as
broad as the condition the demurrer was properly sustained.
Hunter v. /Slwrmcm, 2 Scam. 539; Peck et al. v. Wilson, 22
Ill. 205.
The third and fourth causes of action will be considered to
gether. Both are for the recovery of damages, and must. be
considered as based upon a breach of that condition of the
bond which provides for the payment of all damages that may
accrue to the plaintiff by reason of the unlawful detention of

the property. It appears from the allegations of the com
plaint in the present case that on trial of the replevin suit,
plaintiff in error was adjudged to have been entitled to the
possession of the property mentioned in the writ at the time

O
212
SUPREME Comm: or COLORADO.

Colorado Springs C0. v. Hopkins.
of its issuance, and that it recovered damages for the detention

of said property up to that date.
It was competent for the court in that action to have in
quired into the right of possession of the property down to the

time of judgment, and to have given damages for its detention
to the same date, if the plaintiff was entitled thereto.

on Replevin, Sec. 496.
Wells
The complaint in this case does not contain sufficient of the

proceedings in the former action to explain why judgment
was entered in the form mentioned, and why damages were not
allowed plaintiif in error for the detention up to date of judg
ment. Enough appears, however, to show that the subject of
damages for detention of the property was an issue in that
proceeding.
It follows that to the extent of the recovery
which might have been obtained in that suit, if no error in

tervened, the matter is res adjudicata. The same matters liti
gated there cannot be re-examined in a suit upon the bond.
Wawen v. Mathews, 18 Ill. 83. _

It is not sought in this proceeding to recover the same dam
ages for which judgment was entered in the original suit. but
damages for detention subsequently accruing. But in the ab
sence of an order for the return of the property to the plain

tiif in error, we are not able to say that any such damages
accrued. Certainly if the Colorado Springs Company was not
entitled to have the property returned, it is not entitled to dam
ages for its detention.

The conclusion is, that plaintiff in error has not stated such
a case in either its second, third or fourth cause of action as
entitles it to recover, and that as to all of them the demurrer
was properly sustained.
If such right in fact existed in favor
of plaintiff in error, it should have availed itself of the oppor
tunity granted by the court below to so amend its complaint

as to make the right apparent. Declining to amend, it is con
cluded by the former proceedings.
Judgment armed.
' APRIL TERM, 1880.
213
Huston ct al. v. Wadsworth.
Husron ET AL. V. WADSWORTH.

1. Under the Code (Sec. 183), the court may upon application of either
party direct a reference when the trial of an issue of fact requires the exam
ination of a long account on either side. Th'e referee may be directed to hear
and decide the whole issue, or report upon any specic question of fact in
volved.
2. In this State there is no constitutional impediment in the way of a lib
eral construction of the Code remedy. The provision of the Constitution of the
United States (Art. Vll, amendments) securing the right of trial by jury in
suits at common law where the value in controversy should exceed twenty
dollars, was not intended as a restriction upon the State Courts.
Appeal,/'r0m District Court of Lats Animus County.

Mr. EUGENE B. Cusnme, for appellants.
Mr. J. R. BUCHANAN, for appellee.
Bnox, J. This was an action upon a contract for grading a
railroad.
The court below, on motion of the appellee, who
was the plaintiff in the suit, and without consent of the de

fendan ts, referred the cause to a referee to hear and determine
all the issues of law and fact. The referee took the proofs and
reported a nding in favor of the plaintiff, upon which a udg
ment was entered by the court. The errors assigned question
the power of the court to refer the cause, likewise the validity
of the judgment.
The order of reference does not disclose the ground on which
it was based, but an examination of the pleadings shows that
the reference must have been made under the rst subdivision
of Sec. 188 of our Code of Civil Procedure, which provides as.
follows: When the parties do not consent thereto, the court
may, upon application of either, or upon its own motion, direct
a reference in the following cases: First, when the trial of an
214
SUPREME Conm" or COLORADO.
Huston et al. v. Wadsworth.
issue of fact requires the examination of a long account on

either side, in which case the referees may be directed to hear
and decide the whole issue, or report upon any specicquestion
of fact involved therein. Laws 1879, p. 222, Sec. 15.
This suit was brought to recover for work done under the
contract mentioned, from the 9th day of September, 1878, to
the 11th day of December, 1878.
The grading was done in
Las Animas County, Colorado, and in Colfax County, New
Mexico.
The stipulated compensation varied according to
the character of the work. For a certain kind of work, the

contract price was twelve and one-half cents per yard for ex
cavating, and the same for lls; for other kinds of work thir
teen cents, thirteen and one-half cents, thirteen and three
fourth cents and fourteen and one-half cents, according to the

character of the work; and for all earth hauled a distance exceed
ing two hundred feet, the contract provided a compensation
of one cent per yard for hauling. The plaintiff sues for 27,
000 cubic yards of lls and excavations, and for hauling
30,000 cubic yards of earth a distance exceeding two hundred
feet, the claim amounting in the aggregate to the sum of
$3,900. Credits are given for payments to the workmen em
ployed by plaintiff Wadsworth, to the amount of $2,800. The
complaint alleges the execution of the contract to plaintiff

Vi/'adsworth and one T. A. Maddox. The latter afterwards
assigned his interest in the contract to the plaintiff.
The answer admits the execution of the contract, calls for
proof of the assignment, denies all indebtedness, and alleges

payment in full for the work done.
The principal issue in the case is, whether defendants have
paid in full for all the work done. To determine this issue in
volves an account of every yard of excavating, lling and
hauling, and the character of the work-; likewise an account
of all the moneys paid on account of the contract. And when
it is further considered that the work progressed for a period
of three months, over an extended line of railroad, it is safe to
say that a controversy of this nature would involve the exam
APRIL TERM, 1880.

V
215
ination of long accounts on both sides. The main issue was

therefore clearly referable.
But counsel for the appellants also insist that the court
erred in referring all the issues to the referee. On this point
we nd two lines of authorities on Code provisions substan

tially the same as our own; one in California, the other in New
York. The courts of California have necessarily adopted a.
strict construction of the statute, being impelled thereto by a

provision of the constitution of that State. The courts of New
York have adopted a more liberal construction, not being un
der the same constitutional restraint. The California consti
tution provides that the right of trial by jury sh-all be se
cured to all and remain inviolate forever. Consequently,
when the statute was enacted, providing for a compulsory ref
erence of issues to referees to hear and determine, the courts of
that State were under the necessity of either declaring the act
unconstitutional, or of giving it a strict and narrow construe
tion. The latter course was pursued, and the statute held ap
plicable to equitable actions only. In G'rim v. lV0rris, 19 Cal.
140, the court say: An intentional violation of the con
stitution on the part of the legislature is not to be presumed,
and by construing the statute as solely applying to pro
ceedings in equity, we avoid a seeming conict between the
two instruments. We have no doubt but this construction is
in accordance with the intention of the legislature; but,
whether it is or not, it is certain that no other effect can be
given to the statute.

In other opinions it is held that no power exists in the
courts to order a trial of all the issues of- fact in a cause by a
referee, without consent of the parties litigant, but only those

which involve the examination ofa long account. Williams
v. Benton, 24 Cal. 42-}; Hastings v. (Junning/lam \ 35 Cal.
5
0F
The constitutional provision of the State of New York upon

this subject is, that the trial by jury in all cases in which it
has been heretofore used, shall remain inviolate forever.
216
SUPREME Connr or COLORADO.

It appears that trial by jury had been a matter of right in

all common law actions in that commonwealth, as far back as
the jurisprudence of the State extends, except only as to ac

tions oncontracts involving the examination of long accounts,
which actions always had been referable. The same rule of
practice was adhered to after the adoption of the Code, and the
provision now under consideration was construed to permit
the compulsory reference of actions on contracts involving the
examination of long accounts. Townsend v. H'en/iricka, 40
How. Pr. 143; R3/an v. Atlantic Insurance Company, 50
How. Pr. 321; Welsh v. Darragh, 52 N. Y. 590.
The courts of that State further held in cases of the descrip

tion just mentioned, that whether the whole of the issues shall
be referred, or the taking of the account merely, rests in the
discretion of the court to be exercised according to the partic
ular circumstances of each case. Whittaker v. Des Fosse, 7
Bosworth, 678; Bctchelor v. Albany City In-sumnce Com
pan/y, 37 How. Pr. 399.
We are disposed to favor the construction adopted by the

courts of New York, as one which the statute will bear, and
one attended with greater benets to litigants, being more

speedy and involving less expense.
In our case there is no constitutional impediment in the way

of a liberal construction of the Code remedy. Section 23 of
the bill of rights, referred to in appellants brief, secures the
right of trial by jury in criminal cases, but imposes no restric
tion upon the legislature in respect to the trial of civil causes.
N0 necessity, therefore, exists for a strict construction, and
the legislature has said that the rule of the common law,
that statutes in derogation thereof are to be strictly construed,
has no application to this Code.
Its provisions and all pro
ceedings under it shall be liberally construed, with a view to
promote its object, and assist the parties in obtaining justice.

Code Civil Procedure, section 446.
There is no merit in the point made by counsel for appel

lants that the reference of a case for trial without consent of
APRIL TERM, 1880.

McFarran v. Knox et al.
217
'
the parties is in violation of the seventh article of amendments

to the Constitution of the United States, which secures the
right of trial by jury in suits at common law where the value
in controversy should exceed twenty dollars. This provision
relates tosuch courts only as sit under the authority of the
United States, and was not intended as a restriction upon
State courts.
Cooleys Const. Lim. p. 19* and Note 1; Lee
v. Tillotson, 24 Wen_d. 337; Twitc/tell v. The Commonwealt/2.,

7 Vtlallace, 321.
We discover no error in these proceedings sufcierit to war

rant a reversal. The only question of fact in the case not in
volved in the matter of the accounts, was the question of the
assignment of the contract on the part of Maddox.
This as
signment was not denied by the answer, and if put in issue

at all by it, which admits of doubt, it was merely a collateral
issue.
The referee took down the testimony and reported his nd

ings, together with all the evidence and the objections thereto
to the court, in pursuance of the statute and of the order of
reference. Thereafter and before any judgment was entered

in the case, all questions concerning the rulings and ndings
of the referee were raised before the court by a motion to con
rm his report and for judgment thereon; and it appears that
the court, after reviewing the proceedings and ndings, con
rmed the report and entered judgment. The judgment will

be airmed.
Ayrmed.
i~
McIiAR'nAu v. Knox ET AL.
1. Under the statute (Laws 1874, Sec. 1, p. 169), upon the ling of an ab
stract of judgment in the office of the recorder, the judgment became a lien
upon all the real estate of the judgment debtor. Accrued rights under the
not were saved by the act repealing it. (Code, pp. 162-3.)
218
S
SUPREME Cousrr or COLORADO.

McFa.rru.n v. Knox et al.
Real estate subject to execution under the provisions of the Revised Stat
ute- (Sec. 1, p. 370, 186-), included all interest of the defendant or any per
son to his use, held or claimed by virtue of any deed, etc.
It is to be pre
sumed that the legislature used the term " real estate" in the act of 1874
with reference to this provision, and intended a lien upon whatever real estate
there might be a levy.
.
2. The assignment by the obligee or his assignee of a bond for the con
veyance of real estate, comes clearly within the provisions of Section 1, Rev.
Stats. p. 111 (1868), and unless recorded will not take effect as against sub
sequent brma de purchasers or encumbranoers without notice.
Agfpeal from District Uourt qf El Paco County.

MOFARRAN, the appellant, led in the District Court of El
Paso County his complaint as follows:
Plaintiff alleges that he is now, and has for more than two
years last past, been in possession of the following described
premises, in the county of El Paso and State of Colorado, to

wit:
'
Lot three (3) in D. M. Roses subdivision of lots twenty-ve

(25), twenty-six (26) and twenty-seven (27), in block ninety
two (92), in the city of Colorado Springs. Plaintiff alleges
that the said Nellie Loyd Knox and the said James L. Knox,
by Irving Howbert, his next friend and guardian, the said
James being a minor, are now prosecuting a suit in ejectment
against the plaintiff for the recovery of said premises from
the plaintiff; that the said suit of ejectment was commenced
against the plaintiff by James Knox in said district court on
the twenty-ninth day of January, A. D. 1877; that since the
commencement of the said suit, the said James Knox, plain
tiff therein, has departed this life; that said suit is now prose
cuted by Nellie Loyd Knox, the widow of said James Knox,
plaintiff therein, and by James L. Knox, the heir of said James

Knox, plaintiff therein.
Plainti alleges upon information and belief, that said James

L. Knox and Nellie Loyd Knox, the present plaintiffs in said
suit, claim said lot of land through and under a deed executed
to said James Knox, deceased, by D. M. Rose, said deed pur
APRIL TERM, 1880.
219
McFarran v. Knox et al.
porting to convey said lot to said Knox, deceased, in fee sim

ple.
Plaintiff alleges that he claims title to said lot under and by

virtue of a judgment and purchase at sheritfs sale, as herein
after set forth.
Plaintiff alleges that on the 16th day of December, A. D.

1875, he recovered judgment against one Alvin A. McGovney
and John M. Augustus, in the probate court of said county,
for the sum of ve hundred and fty dollars; that execution
was duly issued thereon and levy thereof duly made upon said
lot as the property of said McGovney; that the same was, un
der and by virtue of said levy so made under said execution as

aforesaid, sold by the sheriff of said county; that at such a sale
the plaintiff became purchaser of said lot, for the sum of ve

hundred and forty-ve dollars; that in evidence of such purchase
the said sheriff executed to the plaintiff a certicate of pur
chase, and thereafter a deed pursuant to law, conveying said
premises to plaintiff.
Plaintiff alleges that an abstract of said judgment was duly
led for record in the ofce of the clerk and recorder of said
county, on the twenty-second day of December, A. D. 1875,
and thereafter duly recorded. Plaintiff alleges, upon informa
tion and belief, that before the ling of said abstract, and on
the tenth day of December, A. D. 1875, the said McGovney
was in possession of said premises and owned the same under

and by virtue of a written contract for _the conveyance of the
same, executed by said Rose to one W. H. Kettlewell, which
said contract had passed by assignment to said McGovney.
Plaintiff alleges, upon information and belief, that on the

sixth day of January, A. D. 1876, the said Rose conveyed said
premises to said Knox, deceased, by deed aforesaid.
Plaintiff alleges that at the time of the ling of liis abstract

as aforesaid, he had no notice or information, by record or oth
erwise, that said McGovney had,in any way, transferred said con
tractor parted with his interest in said property; that he had no
notice or information at the time of the purchase of said lot at
220

McFarran v. Knox ct al.
sheri"s sale as aforesaid, that said McGovney had in any man
ner transferred or assigned said contract, or parted with his

right or interest in said premises; and so the plaintiff says that
he is a subsequent incumbrancer and purchaser of said premi

ses. for a valuable consideration, in good faith, and without no
tice of defendants claim or title thereto. The defendants, as
plaintiff is informed and believes, claiming said premises under
said deed from Rose as aforesaid, alleged to have been made by

said Rose pursuant to an assignment of said contract by said
McGovney to said Knox, deceased, on or about the tenth day
of December, A. D. 1875; of which alleged assignment plain

tiff had no notice as aforesaid; and plaintiff says that in said
suit of ejectment he is unable to make his said defense against
the defendants claim to said premises; that if said defendants
should proceed further therein, this plaintiff will be deprived
of the benet of said defense, and suffer irreparable injury.
Plaintilf therefore prays that defendants may be enjoined
and restrainedfrom further prosecuting said action at law; that
said deed from Rose to Knox be set aside and declared of no

effect, and that the right and title of plaintiff to said premises
may be conrmed, and the claim of said defendants be declared
void; and that plaintiff may have such other relief as he may
be entitled to.
To this complaint the defendants in the court below led
their demurrer, stating as grounds therefor that the complaint
did not state facts suicient to constitute a cause of action, and
that it did not show the plaintiff entitled to the relief prayed.
The demurrer was sustained and the cause dismissed. To re
verse the judgment thus entered, McFarran proseeutes this ap

pea].
Mr. Wm Hanmsou and Mr. J. C. HELM, for appellant.

Mr. T. A. Mcltioanrs, for appellees.
ELBERT, C. J.
Under the provisions of the statute (Session
Laws 1874, section 1, page 160), upon the ling of the abstract
APRIL TERM, 1880.
. 221
McFa.rra.n v. Knox etlal.
of judgment in the olce of the recorder, the judgment of
McFarran became a lien upon all the real estate of McGovney,

the judgment debtor. Although repealed, accrued rights
under this act were saved by the act repealing it.
Code, pages
162 and 163. '

Real estate subject to execution under the provisions of the
Revised Statutes, section 1, page 370, included all interest of
the defendant or any person to his use held or claimed by

virtue of any deed, bond, covenant or otherwise, for a convey
ance, or as mortgagor of lands in fee, for life or for years.

It is to be presumed that the legislature used the term real
estate in the act of 1874, with reference to this provision, and
intended a lien upon whatever real estate there might be a

levy.
In this view the judgment of McFarran, upon being led in
oice of the recorder, became a lien upon McGovne_vs inter
est in the land in dispute as assignee of the bond from Rose,
unless such interest passed by virtue of the prior assignment

by McGovney to Knox. Nor was this lien affected as between
the parties to this suit by the fact that the bond of Rose was
unrecorded. Niantic Bank at al. v. Dennis, 37 Ill. 381.
Section 18, R. S. p. 111, provides that all deeds, convey

ances, agreements in writing of or affecting title to real estate
or any interest therein, and powers of attorney for the convey
ance of any real estate or any interest therein, may be recorded

in the oice of the recorder of the county wherein such real
estate is situated, and from and after the ling thereof for
record in such oice, and not before, such deeds, bonds and
agreements in writing shall take effect as to subsequent bona
zle purchasers and encnmbrancers, by mortgage, judgment or
otherwise, not having notice thereof.
The assignment by the obligee or his assignee of a bond for
the conveyance of real estate comes clearly within the provis
ions of this section, and unless recorded will not take effect as
against a subsequent bona _/ids purchaser or encumbrancer

without notice.
222
SUPREME Comvr or COLORADO.

Allen v. Triteh ct a.l.
Accepting the allegations of the bill as true, the assignment

by McGovney to Knox of the Rose bond was not recorded,
and McFarran was a. subsequent udgment lienor and purchaser

without notice.
The bill stated a cause of action, and the de
murrer should have been overruled. Ricehart et al. v. lla
Clure et al. 23 Ill. 516; Niaintic Bank at al. v. Dennis, supra.

The case of Knox et al. v. McFar1-an, 4 Col. 397, was an
action of cjectxnent, and the legal title was alone involved.
In so far as that decision can be taken as applying to the
equities of McFarran under the registry act above quoted, it
must be regarded as modied by this opinion.
The decree of the court below is reversed and the cause re
manded.
.
Reversed.
ALLEN v. TRITCH ET AL.

1. The Code (section 57), authorizes the ling of a. cross-complaint, asking
affirmative relief.
2. The supplemental proceedings" provided by the Code, appear to be
chiey directed to discovery, and in this respect at least, they are to be re
gardedas taking the place of the former bill of discovery.
They are not, however, adapted to reach the disputed property of the judg
ment debtor; no contested title to property can be determined.
The judgment creditor may maintain his action to cancels. fraudulent con
veyance before execution.
3. The general rule as to parties in chaucery is, that all ought to be made
parties who are interested in the controversy, in order that there may be an
end to litigation.
4. It is understood that the legislature intended by a cross-complaint, the
equivalent of the cross-bill as known to equity practice, and under that prac
tice it was competent to make a person not a partyto the original bill, aparty
defendant to the cross-bill.
5. The doctrine of res adjudicata requires that the same identical matter
should have been in question.
_
Y
Appealfrom District Court
of Arapa/we Ooimty.
APRIL TERM, 1880.
223
Allen v. Tritch et al.
Alexander P. Allen, led his complaint in the District

Court of Boulder County, against George Tritch and others,
creditors of Gay S. Allen; the cause was brought by change
of venue to Arapahoe county, and there tried. The complaint
was to the effect following:
It alleged that on May 7th, 1876, Alexander P. Allen be

came the owner of the undivided one-half of certain real estate
in Boulder county, describing it; that he derived title from
Gay S. Allen May 17, 1876, who was then owner of the fee;
that plaintiff was possessed from date of conveyance to the l
ing of complaint; avers payment of consideration, without
notice of any adverse claims; that Tritoh, on the 6th day of
October_. 1876, caused a writ of attachment to issue from the
District Court of Boulder County, for $7,712.68, and levied
the same on said property, as the property of Gay S. Allen.
Avers plea in abatement by Gay S. Allen in said cause, and
judgment thereon in favor of Tritch; nal judgment against
Gay S. Allen in said cause for plaintiff, Tritch, for $8,307.00
damages and costs; issue of execution Nov. 5, 1877, and levy

on said real estate and notice of sale; that Gay S. Allen never
had any interest in said lots after May 17, 1876; that said levy
and its record is a cloud on title of plainti; that Tritch will

proceed to sell if not restrained, and thereby further cloud
title.
Demand for injunction to restrain sale and to restrain fur

ther issue and levy of execution, and for cancellation of levy
and record of same.

An injunction was allowed.
Defendants led a demurrer to complaint, and moved to dis

solve the injunction.
The motion was denied, and defendants ruled to answer.
Defendants answered substantially as follows :
Deny on information and belief that plaintiff, May 17,
1876, or ever was seized in fee of said lots; deny plainti' de
rived title from Gay S. Allen, and avers that the title was con
veyed without any consideration and fraudulently; deny that
224
SUPREME CouRT of ColoRADo.

plaintiff paid Gay S. Allen full value for said real estate with
out knowledge of any claim thereon, and deny that he paid
any value for same; deny that Gay S. Allen has never had any
claim to said real estate since May 17, 1876, but avers that he
was at all times since seized in fee thereof; deny that plaintiff
has been in possession of said property, and avers possession
in Gay S. Allen since pretended sale, and has received the
rents and profits; deny that Gay S. Allen has never had any
claim or title since May 17, 1876, and allege that said sale and
conveyance was fraudulently made to hinder and delay cred
itors, and that plaintiff had such notice, and that the sale was
void.
Defendants also filed a counter-claim or cross-complaint, aver

ring that on 6th of Oct., 1876, Tritch commenced action vs.
Gay S. Allen by attachment, in Boulder District Court for $7,
712.68, caused it to be levied on said lots as property of Gay S.
Allen; that said Gay filed plea in abatement, which was found
against him; that judgment followed verdict; that in said suit
Tritch alleged that Gay S. Allen had sold and conveyed his
property fraudulently, and to hinder and delay creditors, which
was denied and found true by said verdict.
That Oct. 30, 1877, final judgment on merits was rendered in
favor of Tritch v. Gay S. Allen, for $8,307.00 and costs; that
Nov. 5th, Tritch caused execution to issue to sheriff of Boul
der County; that execution has been returned by sheriff un

satisfied; that at and for a long time before the levy, and at
the date of the judgment and return of the execution, Gay S.
Allen was owner and entitled to the equitable and beneficial
interest in said real estate; that May 17, 1876, and before Gay
was insolvent, that he made the deed to plaintiff to defraud
and hinder and delay creditors; that the deed was without
valuable consideration shown voluntary and fictitious; that

plaintiff holds the title in secret trust for Gayso to aid him
in defrauding creditors, and that plaintiff knew all these facts
at time deed was made; that at date of deed plaintiff did not
pay Gay anything in money or property; that he did give Gay
APRIL TERM, 1880.
225
a mortgage purporting to secure 10 notes, payable in 1 to 10

years each, for $1,300; that Oct. 6, 1876, plaintiff had not
paid any of said notes, but now fraudulently pretends that he
has paid all, though notified of said levy; that July 24th,
1876, plaintiff made to Gay power of attorney, empowering
him to sell and convey, or lease said property, or to exchange it
for other property, and receive the purchase-money and rents,
and giving him full power over property as before sale, and
averring that the sale, deed, notes, mortgage and power were
all made to defraud creditors, and especially Tritch; averring
a legal lien by his levy against said property; that his judg
ment is due and unpaid; that Gay has no property subject to
execution except that described above.
Demands judgment canceling deed to plaintiff, power of at
torney and mortgage, for an account for all property received
from Gay; that he be restrained from interfering with said
property, and that Tritch's judgment be satisfied out of pro
ceeds of said property.
The plaintiff filed a special replication. Subsequently judg
ment was rendered in pursuance of the prayer of the cross
complaint, canceling the deed, mortgage and power of attor
ney, enjoining the plaintiff from conveying, incumbering, or
interfering with the property, and dissolving the injunction,
which had been issued in behalf of plaintiff. To reverse that
judgment, Alexander P. Allen prosecutes this appeal.

Messrs. BRowNE & PUTNAM, for appellant.
Messrs. SYMEs & Foot, for appellee.
ELBERT, C. J. Under section 57 of the Code, the defendants
were entitled to file their cross-complaint asking affirmative
relief. It is claimed, however, that the cross-complaint here
interposed is substantially a creditor's bill, and that a judg

ment creditor's remedy by creditor's bill no longer exists, the
framers of the Code having substituted therefor proceedings
15
[O LO C5

Allen v. T1-itch et al.
supplemental to execution. Chap. 20. Hester v. Olffor/I rt

al. Decided at the present term.
The supplemental proceedings provided by the Code appear
to be chiey directed to discovery, and in this respect at least
they are to be regarded as taking the place of the former bill
of discovery. They are not adapted, however, to reach the

disputed property of the judgment debtor; no contested title
to property can be determined. Gaspar c Seymorc v. Bennet,
12 How. Pr. 307, and cases cited. The cross-complaint here
seeks the cancellation of a deed and mortgage made in fraud
of creditors. The right of a judgment creditor to equitable

relief in case of the fraudulent transfer of real estate by the
judgment debtor is well settled. He may maintain his action
to cancel the fraudulent conveyance before execution. Ward
v. En/ders, 29 Ill. 519; Loom-is v. Tgft, 16 Barb. 541; Wilson
v. Forsyth, 24 Barb. 105; Payne v. S/zelrlon, 63 Barb. 169.

No like or equivalent remedy can be had by proceedings
supplemental to execution, and it exists unimpaired as before
the adoption "of the Code.
It is objected that Gay S. Allen was a necessary party to the
cross-complaint. He was the judgment debtor whose convey
ance to the complainant, Alexander P. Allen, the cross-com
plaint sought to set aside as made with intent to hinder, delay

and defraud his creditors; he was the mortgagee in the mort
gage from the complainant, which it was also sou_;ht to can
cel for the like reason.
Section 12 of the Code provides that any person may be

made a defendant who has, or claims an interest in the con
troversy adverse to the plaintiff. or who is a necessary party to

a complete determination or settlement of the question involved
therein.
This is substantially the old rule of equity pleading.
Mr.
Story states the general rule as to parties, as follows: All

persons materiallyinterested in the subject-matter ought to be
made parties to the suit, either as plaintiffs or defendants,
however numerous they may be, in order, not only that com
APRIL TERM, 1880.
to [0 ~1
Allen v. T1-itch et al.
plete justice may be done, but that multiplicity of suits may

be prevented; or, as the rule was once stated by Lord Hard
wicke, that all persons ought to be made parties before the
court who are necessary to make the determination complete
and to quiet the question. * * * It has also been sug
gested that it would be a more just exposition of the general
rule to declare that all persons interested in the object of the

suit ought to be made parties. Storys
Pl. Sec. 76, at seq.
In the case of Wzilliams v. B<m7.'/Lead, 19 Wal. 573, Brad
ley, J., says: The general rule as to parties in chancery is,
that all ought to be made parties who are interested in the
controversy, in order that there may be an end of litigation.
But there are qualications of this rule arising out of public

policy and the necessities of particular cases.
The true dis
tinction appears to be as follows :

First. Where a party will be directly affected by a de
cree, he is an indispensable party. unless the parties are too
numerous to be brought before the court, when the case is
subject to a special rule.
Second. Where a party is interested in the controversy,
but will not be directly affected by the decree made in his ab
sence, he is not an indispensable party, but he should be made
a party if possible, and the court will not proceed to a decree

without him, if he can be reached.
Third. Where he is not interested in the controversy be
tween the immediate litigants, but has an interest in the sub
ject-matter which may be conveniently settled by the suit,
and thereby prevent further litigation, he may be a party or
not, at the option of the complainant.
Mr. Bliss, in his work on Code Pleading (Secs. 96, 97), cites
these equity rules in connection with the provision of the
Code above quoted, and says that the phrase may be made
dependent should be treated as imperative or directory, ac
cording to the nature of the interest. Ile further says (Sec.
11): Keeping in view the object of the action, understand
ing the interests and claims to be affected, remembering that
228
SUPREME Counr or CoLor..u>o.

the rights of no one can be concluded until he shall have had

an opportunity to be heard in regard to them, and noting
further, that courts will discourage many suits where one will
suice; that they will not give remedies piecemeal, but will re
quire such persons to be brought into court as will enable
them to make a full and complete settlement of the question

or interests involved, the pleader in this regard will be seldom
wrong.
Considering the nature and object of the cross-complaint,

Gay S. Allen was an indispensable party. .
I do not regard the language of section 57, touching a cross
complaint as excluding parties not parties to the original bill.
Such an interpretation would unreasonably limit the uses of
the cross-complaint and multiply litigation. I take it that the
legislature intended by a cross-complaint the equivalent of

the cross-bill as known to equity practice, and under that
practice it was competent to make a person not a party to the
original bill, a party defendant to the cross-bill. Jones ct al.
v. Smith, 14; Ill. 232; Huwl v. Case, 32 Ill. 49.
In the rst case cited, Caron, J., says: Such a case may
not often arise, making it necessary to bring in new parties to
a cross-bill; but when it does arise, the well established and
universally recognized rule of chancery pleading, requires that

the new parties shall be brought in and allowed to controvert
the new allegations, and resist a decree prejudicial to their in

terests. We have not looked for precedents for a practice so
imperatively required by the reason of the law and the law
itself.
.
Independently of the equity rule, section 57 is to be read in
connection with the provisions of section 12, already quoted,
as also section 16, which provides that the court may deter
mine any controversy between parties before it when it can be

done without prejudice to the rights of others, or by saving
their rights; but when a complete determination of the contro
versy cannot be had without the presence of other parties, the
court shall order them to be brought in.
APRIL TERM, 1880.
229
Although the decree in this case saved the rights of Allen

it was not a case where the rights could be saved, and any de
termination of the controversy be had. In answer to this it
is urged that the issue as to the fraudulent character of the
deed and mortgage, as between Tritch, the defendant, and Gay
S. Allen, had antecedently been determined in the attachment
suit, andthat theseissues as toGay S. Allen were 're.9_7'udicatca.

In the original attachment suit brought by Tritch against
Gay S. Allen, the aidavit required by the statute alleged that

the said Gay S. Allen had sold, conveyed, transferred and as
signed his property and effects so as to hinder and delay his
creditors. Upon this, issue was joined by Allen by plea in
abatement, and found by the jury for Tritch. This is alleged

by the cross-complaint.
Without considering the effect of the fact that the issue here
made was in a collateral proceeding having for its object solely
the dissolution of the attachment, it is manifest that it did not
necessarily involve the issues made by the cross-complaint

The record does not show that there was a denite and specic
issue made upon the fraudulent character of the deed and
mortgage here sought to be set aside. For aught that appears,
the issue may have been found as alleged, upon other and
entirely independent transactions of Allen. The doctrine of
resjudicatw requires that the same identical matter should

have been in question.
is not well taken.
Br0oms Leg. Max. 331.*
The point
Although the objection of the non-joinder of Gay S. Allen.

was not taken at the trial below, the rights of parties and the
due administration of justice, require that we notice it sua

sponte.
The decree of the court below is reversed and the cause re

manded, with leave to amend the cross-complaint.
Reversed.
Mr. Justice B201: did not sit in this case.
mi
230

Riddell et al. v. A. C. T. R. Co.
RIDDELL ET AL. v. THE Armuns Canon ToLL Roan Co.

1. The effect of sections 28 and 48(B.. S. p. 125), of the act concerning
corporations, is to give a road wmpany the right to locate its road on the
general course designated in the articles of incorporation, and when so
located, to construct, maintain and operate the road on the line of location,
subject to the conditions of condemnation, coinpensation and other require
ments of the act.
2. Until the way is located, no right-of-way can be said to attach to any
particular land.
3. There is nothing in the language of the act to indicate an intention on
the part of the legislature, that upon the location of the road, the right of
the company in respect to its right-of-way relates back to the ling .of the
articles of incorporation, and that settlers subsequent to that date, although
prior to the location of the road, take their lands subject to the companys
right-of-way.
The doctrine of relation is sometimes resorted to, to prevent an injustice,
but neverto work one.
Appeal from District Court Qf San Juan County.

THE plaintiffs in the court below commenced their action on
the 30th of August, 1878, alleging in their complaint that they
were the owners in the actual occupation and possession of a
certain parcel of unsurveyed public land, and claiming the
right to occupy and possess the same under the laws of the
United States and of the State of Colorado; that the plaintiffs
rst settled upon the premises in June, 1875, and made im
provements of the value of at least $150, and have continued
to occupy said premises from the date of their settlement

until the present time; that on the 22nd day of August, 1876,
plaintis caused the said premises to be surveyed and the
boundaries thereof to be marked o', so that the extent of
the same might be easily known; and on the 24th day of

August, 1876, led for record their declaratory statement with
the county clerk and recorder of San Juan county, Col

orado; that on August 19, 1878, the defendants forcibly
broke and entered the said premises of the plaintiffs, and
APRIL TERM, 1880.
231
Riddell et al. v. A. C. T. R. Co.
began to dig up and subvert the soil thereof for the purpose
of constructing upon and across the same a wagon road, to the
great damage to the plaintiffs; and that the defendants con
tinue, and threaten to continue, to so dig up and subvert the
soil of said premises, and without any authority whatever so
to do. That said premises lie within the canon of the Animas
river, and is a narrow strip of land of considerable length, so
that in the construction of a road through the same, a great
portion thereof will necessarily be taken, and in such shape
through the same as to put plaintiffs to great expense in fenc
ing their premises on either side of said road. That plaintiffs
are damaged to the amount of five hundred dollars. That de
fendants are at work on said premises with a large force of
men, and, unless restrained, will do plaintiffs all the damage
against which they seek relief.
That the defendant is a corporation created under the laws
of Colorado, etc., praying for an injunction, and also laying
damages in the sum of $500.
The defendant in its answer denied the settlement of plain
tiffs as alleged, or at any time prior to August 24, 1876; ad
mitted the entry and construction of the road, and claimed the
right so to do under its articles of incorporation, alleging that
the company had surveyed a route over the premises long prior
to the settlement of the plaintiffs, and denied all damages.
The cause was tried before the court and a jury, and a verdict
rendered in favor of the defendant.
A motion for a new trial
was interposed and overruled, and judgment entered on the

verdict.
Messrs. LovE & WAN LIEw, for appellants.

Messrs. WILsoN & TAYLOR and Mr. T. M. PATTERSON, for
appellee.
ELBERT, C. J. This was an action brought by the appellants
to recover damages against the defendant company for laying out
and constructing its road over the land of the appellants.
232
SUPREME Couar or Conoamo.

Riddell et al. v. A. C. T. R. C0.
"
Section 28 of the act concerning Corporations (R. S. p. 125),

provides that when any three or more persons shall associate
to form a company for the purpose ofconstructing a wagon road
under the provisions of this article, their certicate of incorpora
tion, in addition to the matters hereinbefore required to be sta
ted therein, shall specify the termini of said road and the route of
the same as near as may be, and the said company shall have
the right-of-way over the line named in the certicate to erect
toll-gates, etc., etc.
Sec. 48 provides for the condemnation of lauds necessary
for the construction or maintenance of the road, and for com
pensation to the owners of lands taken or affected by the road.

The effect of these provisions is to give a road company the
right to locate its road on the general course designated in the
articles of incorporation, and when so located, to construct,
maintain and operate the road on the line of location, subject
to the conditions of condemnation, compensation, and other
requirements of the act.
Until the way is located, no right-of-way can be said to at
tach to any particular land. As long as the power to locate
the road remains unexerted, the lands upon which the exercise
of the right may ultimately cast the easement are uncertain,
and no given tract or parcel of land can be designated as
charged with the easement.
It is claimed, however, that upon location of the road the
right of the company, in respect to its right-of-way, relates
back to the date of ling its articles of incorporation, and that
settlers subsequent to that date, although prior to the location
of the road, take their lands subject to the companys right-of

way.
We nd nothing in the language of the act that indicates
such an intention upon the part of the legislature, nor any
thing in the object and purposes of the act that demands such
a construction as necessary to either its benecial or just op
eration.
u
On the other hand, such a construction would charge the
[O Q; C.-G
APRIL TERM, 1880.

Hurd et al. v. Smith.
lands of a settler on the general line of the road with a servi

tude which was not apparent, and of which the general desig
nation of the line in the articles or incorporation gave him no
denite notice. The doctrine of relation is sometimes resort

ed to, to prevent an injustice, but never to work one. The
statute contemplates and provides for compensation for injury

done to lands over which it is constructed, when such lands
are occupied and claimed under our laws. Such compensation

is not to be defeated in any case where a fair construction of
the law admits of it.
The appellants being in possession, and having on the 24th
of August, 1876, and prior to the location of the road, led
with the clerk and recorder of San Juan County, their declara
tion under the law (Gen. Laws, chapter 83), designating and
claiming by metes and bounds the lands, the subject of the
trespass complained of, they were entitled to recover, notwith
standing the articles of incorporation of the defendant company
were led prior to the ling of the declaratory statement of the
appellants.
The court in e'ect instructed the jury that if the articles of
incorporation of the defendant company were led prior to the
declaratory statement of the appellants, that the appellants
could not recover. In this there was error, and the udgment
of the court below is reversed and cause remanded.
Reversed.
Huan ET AL. v. SMITH.

1. Taking leave to amend an answer after demurrer sustained. is a waiver
of the right to assign error upon the action of the court in sustaining the
demurrer.
2. A defendant has no right to continue to present the same defense by
ditfenent pleas.
2-'34

3. It is a rule that when there are express covenants in a deed, other cove
nants will not be implied.
4. There is no breach of a covenant of warranty until eviction, and in
pleading in an action for such breach eviction must be alleged.
Appeal from District Court of Clear Creek Uomzty.

MARGARET SMITH, the appellee, commenced her action in
the District Court of Clear Creek County, upon two certain
promissory notes, given by the appellants, Nathan S. and

William J. Hard, payable to her order, dated July 5, 1877, for
two hundred dollars each, due eight and eleven months from
date, respectively.
The defendants answered:
That plaintiff holds said notes in trust for her husband,
William F. Smith, who is indebted to defendant, Nathan S.
Ilurd, in the sum of ten dollars, due and owing since 1877.
For a second cause of counter-claim and cause of recoup
ment.
1. That said notes were part payment for lots 3 and 4, in

block number 24, in the town of Georgetown, in said county
and State, which the defendant, Nathan S. Hurd bought of

\Villiam F. Smith, the plainti"s husband, who made, executed,
signed, sealed and delivered to said Nathan S. Hurd, a general

warranty deed bearing date of July 2d, 1877 (deed set out
in full).
That on September 4, 1877, the plaintiff made, executed and
delivered to the defendant, Nathan S. Hurd, a general war

ranty deed to the same premises described in the foregoing
deed, with same covenants of warranty as contained in the
above deed, and of the same tenor and effect as the above deed.
*
-X
-X
2. That said notes were given in part payment for said lots
conveyed by said deeds, and were given for no other or further
consideration than as such part payment.
3. That one Charles J. Yates was in possession of that part

of said lot four lying east of the center of Clear Creek, on
APRIL TERM, 1880.
235
July 2nd, 1877, and since said date, and now is in possession
of said part of lot four, claiming the same adversely to the de

fendant, Nathan S. Hurd, and under a title, it is said, derived
from said William F. Smith prior to his making his said war
ranty deed to said Nathan S. Hurd; and that upon and ever
since the date last aforesaid, said Charles J. Yates has held
and now holds possession of that part of lot four lying east of
said Clear Creek, against the will and consent of said Nathan
S. Hurd.
4. That the rental value of that part of said lot so pos
sessed by said Yates as aforesaid, is, as defendant believes and
therefore charges the fact to be, at least ten dollars per
month.
For a third defense:
1. That on and ever since July 2nd, 1877, one Charles J.

Yates possessed, and now possesses, adversely to said Nathan
S. Hurd, a part of lot 4 mentioned and described in the war
ranty deeds in the II defense above set forth; and that part of
said lot four which lies east of the center of Clear Creek.
2. That said Charles J. Yates claims under a title, as it is
said, made by said William F. Smith to said Yates prior to

July 2nd, 1877.
'
3. That at the March term of the county court, in and for
said county, in the year 1878, said Nathan S. Hurd sued
said Yates in an action of ejectment for the recovery of that
part of said lot four so possessed by said Charles J. Yates, as

aforesaid.
4. That in said ejectment suit, the plaintiff, Nathan S.

Hurd, alleged and complained that he was the owner in fee of
said lots three and four; and that said Yates possessed and
claimed to rightfully possess said lots in said deeds described

in the second defense above set forth; and that said Yates
claimed an interest in said lots, adversely to plaintiff, the said
Nathan S. Hurd.
5. That said Charles J. Yates answered said complaint, and
disclaimed all interest in and to said lots, except that part of
236
lot four, lying east of the center of Clear Creek; which part
of said lot four claimed he owned by virtue of a contract
made with said William F. Smith, in April, 1874, wherein said
William F. Smith agreed to sell to him, the said Yates, that
part of lot four lying east of the center of Clear Creek afore
said; which lot is described in the warranty deeds in the II
cause of action herein set forth, on payment to him, the said
Smith, the sum of fifty dollars; which sum the said Yates
averred that he had paid to said Smith, in pursuance of said
contract.
6. That on or about April 23, 1878, a judgment and decree

was made and entered in said ejectment cause, denying that
the portion of said lot four so possessed and claimed by said
Yates, as aforesaid, was the property of said Yates, and that
he had good title thereto.
7. That that part of said lot four possessed by said Yates,
as aforesaid, defendants believe, and therefore charge the fact
to be, is worth five hundred dollars, and was of this value on
the 2d day of July, 1877.

8.
Wherefore defendants aver that the consideration of said
notes has wholly failed.

And for a fourth defense and cause of counter-claim:
1. That the rents, issues and profits of that part of lot four
possessed by Charles J. Yates, as is set forth in the III defense
herein, has been worth, as defendants believe, and have reason
to believe, and therefore charge the fact to be, the sum of ten
dollars per month from July 2d, 1877, to the present time.
2. Wherefore defendants pray that ten dollars per month
be allowed as counter-claim and recoupment against said notes
from July 2d, 1876, and that judgment be given therefor.
And for a fifth defense and counter-claim:
1.
That defendant, Nathan S. Hurd, commenced an action
of ejectment against Charles J. Yates, to recover a part of lot

four; said lot being described in the warranty deeds in the II
cause of action above and herein set forth, the said suit being
the same action and suit described and referred to in the III
APRIL TERM, 1880.
23 7
cause of action herein and above set forth, and that said suit
was commenced at the time, in the manner and for the pur
poses therein set forth.
2. That the defendant, Nathan S. Hurd, gave notice in
writing to said William F. Smith, as well as to him as agent
for Margaret Smith, the plaintiff, of the pendency of said suit,

and of the notice of the defense of said Charles J. Yates in said
suit, and notifying and requesting them to attend to said suit

and the trial of the same, and defend the title of the same, in
pursuance and compliance with their covenants of warranty,
in their warranty deeds contained; copies of which deeds are
in the II cause of action herein and above set forth; and that
said notice was served on William F. Smith, by delivering him
copies of said notice on or about March 19, 1878, and before
the trial of said ejectment cause in the county court of said
county.
3. That said William F. Smith and the plaintiff failed to

defend the title to said premises in said ejectment suit aforesaid,
in which a decree was entered in favor of Yates as aforesaid.
4. That the defendant, Nathan S. Hurd, incurred large

expenses in prosecuting said ejectment suit, and laid and paid
out in costs, amounting to eighteen dollars, and counsel fees in
said ejectment suit amounting to two hundred dollars, for
which sums judgment is prayed.
And for a sixth defense and counter-claim:
1. That the defendant, Nathan S. Hurd, did, on January 14,

1878, pay the taxes assessed against the premises mentioned
and described in the warranty deeds set forth in the II cause
of action herein and above set forth, which taxes were assessed
for the year 1877, against said William F. Smith in behalf of

said State, county, and town of Georgetown, amounting in all
to the sum of forty-five dollars and forty-five cents.
2. That defendant, Nathan S. Hurd, paid said taxes to pre
vent a cloud upon the title to said premises arising, and to
prevent the same, was compelled to pay said taxes, the amount
of which he has demanded of plaintiff at said date, and pay
ment was refused.
238
SUPREME CouRT OF CoLoRADo.

And for a seventh defense, etc.

That the defendant, William J. Hurd, has no interest in
the foregoing defenses, or transactions, and that he signed said

notes as a surety for his co-defendant herein.
Wherefore, Nathan S. Hurd prays judgment fordol
lars, with interest from January 1, 1878; also the rental of
the premises mentioned in the IV cause of counter-claim
herein possessed by Charles J. Yates as therein stated; also
the costs and reasonable counsel fees expended by defendant, as
complained in the V cause of counter-claim herein; also the
sum of forty-five dollars and forty-five cents, with interest
thereon from January 14, 1878, as complained of in the VI
cause of counter-claim herein, together with all other costs and
damages of suit.
The plaintiff having demurred, the demurrer was sustained;
the defendants then amended certain portions of their answer,
as stated in the opinion, and the amendments were stricken
out on motion of the plaintiff; the plaintiff thereupon moved
for judgment upon the pleadings, the motion was allowed, and
judgment entered to the effect following:
It appearing to the court from the pleadings of the said
parties, that said defendants are indebted to the said plaintiff
in the sum of four hundred and forty-six dollars and ten
cents; and it further appearing from the answer of said de
fendants, that defendants hath a just and equitable counter
claim or set-off against said plaintiff to the amount of fifty
five dollars and forty-five cents, which is now here allowed
and deducted from the amount so found to be due to said
plaintiff.
Wherefore, by reason of the law and the premises aforesaid,
it is ordered, adjudged and decreed that the plaintiff, Marga
ret Smith, do have and recover from the said defendants,
Nathan S. Hurd and William J. Hurd, the sum of three hun
dred and ninety dollars and sixty-five cents, with legal interest
thereon, together with plaintiff's costs, etc.
Mr. L. C. RocKwKLL and Mr. W. T. HUGHES, for appellants.
2 39
APRIL TERM, 1880.

Mr. FRANK A. PoPE and Messrs. Post & CourtER, for ap

pellee.
ELBERT, C. J. The defendants set up in their answer six
separate defenses. A demurrer was sustained as to the second,
third, fourth and fifth defenses, and overruled as to the first
and sixth. The defendants stood by their fifth defense, and

took leave to amend as to the others.
This action waived their
right to assign error on the action of the court in sustaining

the demurrer, except as to their fifth defense. The fourth de
fense was not amended and must be considered as abandoned.
The amendments made to the second and third defenses were
of immaterial matters, and in nowise changed the nature of

the defense sought to be interposed, the sufficiency of which
had already been passed upon by the court.
There is no substantial difference between the defenses as
they stood and the defenses as amended, and it was entirely

within the discretion of the court to strike the amendments
from the files.
In the case of Heaton v. Myers, 4 Col. 62, the court says:

A defendant has no right to continue to present the same de
fense by different pleas. Parks v. Holmes, 22 Ill. 522. Nor
may he repeatedly refer to the decision of the court, the legal
sufficiency of the same defense, under the guise of an amended
plea.
The fifth defense was bad.
Our statute does not in terms
create implied covenants. It is also a rule that where there

are express covenants in a deed, other covenants will not be
implied. Willard, Real Estate and Con. 411; Frost v. Ray
mond, 2 Caine's, 190; Van Du Kam v. Van Du Kam, 11
Johns *122; Finley v. Stere 23 Ill. 56. This disposes of the
argument of counsel concerning the implied covenants of the
deeds set up.
-
There was but the one covenant in the deeds set forth in the
defendants answerthe covenant of warranty. If the costs

and counsel fees paid out and expended in and about the eject
240

Wilber et al. v. Eicholtz.
ment suit are recoverable at all, they are recoverable only as

damages resulting from a breach of the covenant of warranty
in the plaintiff's deed.
In actions for breach of this and other covenants contained
in conveyances of real estate, costs and counsel fees incurred

in defending the grantor's title, are by some of the States al
lowed as damages resulting from a breach of the covenant.
Sedgwick Meas Dam. *176*182, and cases cited.

no breach of a covenant of warranty until eviction.
There is
Sedg
wick Meas. Dam. *152"158.
No eviction is alleged by the defense in this case; on the

other hand, it shows that the action of ejectment is still pend
ing and undetermined. There being no breach, there could be
no recovery. The demurrer was properly sustained.
By their first defense the defendants claimed a set-off of ten
dollars, with interest from January 1, 1870.
By their sixth
defense they claimed a set-off of $45.45, taxes paid January
14th, 1878, for and on behalf of the plaintiff, with interest at
the rate of ten per cent. per annum.
The plaintiff admitted these two claims and consented to their
allowance. Through some inadvertence in the entry of judg
ment, no allowance of interest was made on these items of set
off. For this reason the judgment is reversed and the cause
remanded, with directions to enter judgment, corrected in this
particular.
I'eversed.
WILBER ET AL. V. EICHOLTZ.

1. There is no principle of law that will hold a party to the consequences
resulting from the perpetration of fraud, who is innocent of all participation
in it, unless it be where the statute has declared instruments to be absolutely
void, as having been given in violation of some special statute.
APRIL TERM, 1880.
241
2. It is not error for either witnesses or jurors to make comparison for the
purpose of forming an opinion concerning handwriting, when the paper used
for the purpose constitute a part of the record in the cause and are undisputed.

THE jury rendered a verdict in this case in favor of the
plaintiff, Eicholtz, and judgment was entered on the verdict.
The facts are sufficiently stated in the opinion.
Messrs. CHARLEs & DILLON and Mr. H. P. H. BRowNwELL,
for appellants.
Mr. E. P. JAcobson and B. F. HARRINGTON, for appellee.
BECK, J.
The record in this case discloses that one of the
defendants below, George F. Packard, applied to the appellee,

Leonard H. Eicholtz, and one Horace A. Gray, since deceased,
in May, 1873, for a loan of $2,500, to enable Packard and other
farmers of Rallston creek to subscribe and pay for twenty-five
shares of stock in an agricultural society named the Colorado
Industrial Association. The parties applied to consented to
loan the requisite sum if twenty-five farmers of the neighbor
hood mentioned would execute their joint promissory note for

the amount.
A note was prepared and given Packard for the requisite

signatures, and upon its return with the proper number, the
money was paid over by Gray & Eicholtz to Packard, and by

him to the Industrial Association.
The makers of the note having each subscribed for a share

of stock in the association, were admitted to the privileges of
membership; but for the protection of those who should pay

their proportion of the note, as against those who might not,
the treasurer of the association was instructed to deliver a cer
tificate of stock to each subscriber, upon his producing a re

ceipt from Gray & Eicholtz that he had paid the sum of one
hundred dollars and accrued interest thereon upon the note,
and not otherwise.
16
242

The note not being wholly paid, this suit was instituted to
recover the balance due thereon.
Some of the defendants suf
fered judgment to be entered against them by default; some

of the makers were not found; some were under legal disabili
ties at the time of executing the note, and were adjudged not
liable on that ground; and the remainder, against whom judg
ment was rendered on the trial, are defending on two grounds:
first, that they never executed the note; and second, that the
execution of the note was procured by fraud.

There is a voluminous record in the case, and upon it ap
pear eighty-eight assignments of error.
After a careful examination of this record, in respect to all
the errors assigned, we have failed to discover any substantial
error in the proceedings of the district court. Nor have we
been able to discover that any close questions of law arise de
manding serious consideration and discussion. The case
appears to have been fairly tried; to have been submitted to
the jury upon correct instructions, and we think its finding
was warranted by the testimony.
If any fraud was practiced in obtaining the signatures of
defendants to the note, there is nothing in the record to con
nect the payees with the fraud. The jury was correctly in
-
structed to this effect, and also that if the defendants executed
the note, the fraudulent representations of the defendant,

Packard, if any were made by him, constituted no defense, if
they executed the note or caused it to be executed, with the
understanding that Packard should get the money on it, and
use it to pay for a share of stock in the Colorado Industrial
Association for each subscriber to the note, and that the mon
ey was obtained and appropriated to this purpose.

Our statute upon the subject of obtaining the execution of
negotiable instruments by fraud or circumvention, is the same
as the statute of Illinois upon the same subject, and the Su
preme court of that State in Young v. Ward, 21 Ill. 223, says:
There is no principle of law that will hold a party to the
consequences resulting from the perpetration of fraud, who is
APRIL TERM, 1880.
243
innocent of all participation in it, unless it be where the stat

ute has declared instruments to be absolutely void, as having
been given in violation of some penal statute.
The same doctrine has since been affirmed in the following
cases: Easter v. Minard, 26 Id. 494; Gridley v. Bane, 57 Ill.
529; Anderson v. Warren, 71 Ill. 20.
But if it was necessary to qualify the doctrine of the above

cases, so as to deprive the makers of a promissory note of this
defense only when they are chargeable with negligence in
making the note in the absence of fraud or collusion on the
part of the payee, yet the instructions of the court would not
be in conflict with this view of the law, and the verdict of the
jury would still be supported by the testimony.

The execution of the note having been denied by a portion
of the defendants by a plea verified by affidavit, the jury was

permitted to compare the signatures of the defendants sub
scribed to this affidavit, and likewise their signatures subscribed
to the affidavit of merits filed in the cause, with what pur
ported to be the signatures of the same defendants to the note
in suit.
This ruling is assigned for error.

A similar question arose in the case of Vinton v. Peck, 14
Mich. 287. In that case it was assigned for error that wit
nesses were allowed to compare the signature of the defendant
subscribed to the appeal bond, and to an affidavit in the cause,
with the signature affixed to the note in suit. It was held not
to be error for either witnesses or jurors to make such compar
ison for the purpose of forming an opinion concerning the
handwriting, when the papers used for the purpose constitute
a part of the record in the cause, and are undisputed.
We think this case announces the correct rule.
Where the
papers belong to the files in the cause, or have been previously

received in evidence, and are admitted to be genuine, the ob
jections urged against this class of testimony, that the writ
ings sought to be used for comparison may have been specially
selected as a standard, or that their introduction may cause
244
SUPREME Court of Color ADO.

Alvord et al. v. McGaughey.
collateral issues to spring up as to their genuineness, do not

obtain.
1 Greenleaf Ev. Secs. 578,581; 1 Best Ev. Secs. 238,
239; Wharton Ev. Sec. 713; 2 Phillips Ev. p. *616; Moore v.

United States, 1 Otto, 270.
We do not deem it necessary to consider in detail the nu

merous other errors assigned. It is sufficient to say that we
do not consider any of the objections to the proceedings below
well taken, and therefore affirm the judgment.
Judgment affirmed.
ELBERT, C. J., did not sit in this cause.
ALvoRD ET AL. v. McGAUGHEY.

1. A writ of error only lies to such judgments and decrees of the district
and county courts as are final. Laws 1879, p. 229.
2. The findings of the court are no more a judgment than the verdict of
a jury in a cause tried by a jury; and a statement in a bill of exceptions that
a judgment was rendered, cannot supply the place of the judgment itself.
Error to District Court of Ouray County.

THIS was a motion to dismiss the writ of error.
Messrs. MILEs & ANDREws, for the defendant in error.

w
Messrs. HUBBARD & HARMAN, contra.
BECK, J. This cause was brought here by writ of error to the

District Court of Ouray County. The defendant in error moves
- to dismiss the writ upon several grounds, one of which is

there is nothing shown in the record to which the writ will
lie.
An inspection of the record discloses the fact that no final
APRIL TERM, 1880.
245
judgment has been entered in the cause, and that the portion
of the record supposed to be a judgment, is simply the findings
of the court, the cause having been tried by the court without
a jury. These findings are as follows: After hearing the
evidence and arguments of the counsel, the court doth find that
the said defendants are indebted to the said plaintiff in the sum
of two hundred and two dollars, together with his costs in this
behalf paid, laid out and expended, taxed at dollars; and
then, upon motion of the said defendants, it is ordered that
the plaintiff be taxed with all costs accruing from the date of
the filing of the motion in the county court to set aside the ap
peal bond up to the time when the county court granted the
petition for change of venue, and all the remainder of the costs
in this cause shall be taxed to the defendants.

A cross-motion had been interposed for leave to file a sup
plemental transcript, and the document proposed to be filed is
submitted for our inspection. We find it to be simply a bill
of exceptions, and certified to be such by the clerk of the dis
trict court. It contains an allegation that a judgment was
rendered, but no judgment is set out, although the same find
ings of the court are copied therein which appear in the origi
nal transcript. This statement that a judgment was rendered

does not follow the findings of the court, but occurs immedi
ately after the testimony, and doubtless refers to the findings,
characterizing them as a judgment.
Inasmuch as the statement does not appear in the transcript
of the record, but only in the bill of exceptions, the plain and
necessary inference is that it is a conclusion of the counsel who
prepared the bill of exceptions, and that there is no such state
ment of record in the court below. But if a part of the rec
ord, it would not cure the defect, as this statement is not a
judgment. In the case of Faulk v. Kellums, 54 Ill. 189, the

cause having been tried before a jury, the verdict was: We,
the jury, find in favor of the plaintiff, and assess his damages
at $4,493.
A motion for a new trial was made and overruled,
and then follows this entry upon the record: Whereupon,
246

the court enters judgment upon the verdict. This entry was
held not to constitute a judgment, nor to have any element of
a judgment other than a bare recognition of the finding of
the jury.
Section 185 of the Code of Civil Procedure, requires upon
trial of issue of fact by the court, that judgment shall be en
tered in accordance with the finding of the court. By force
of section 38 of the Code amendments, Laws 1879, p. 229, the
writ of error only lies to such judgments and decrees of the
district and county courts as are final. The same rule obtained
at common law. Powell on Appellate Proceedings, pp. 45, 46.
While a strict compliance with forms is not essential in the
entry of judgments, yet to constitute a final judgment the rec
ord must not only indicate that an adjudication took place,
but the entry must have been intended as an entry of a judg
ment. No such intention is manifest in these transcripts of
proceedings. The findings of the court are no more a judg
ment than would be the verdict of a jury in a cause tried before
a jury, and the statement in the bill of exceptions that a judg:
ment was rendered cannot supply the place of the judgment
-
. . itself.
So far as shown by the transcripts, the clerk of the court

below has never entered up a final judgment in this cause, and
it remains a lis pendens in the district court.
Judgment may yet be entered upon the findings of the

court. Powell on Appellate Proceedings, page 129, section 22;
Cody v. Filley, 4 Col. 109; Kinsley v. The State of Ohio, 3
Ohio St. 508.
The motion to dismiss the writ of error will be sustained.
Writ of Error dismissed.
APRIL TERM, 1880.
247
Speelman v. Chaffee.
SPEELMAN v. CHAFFEE.
1. The return of an execution unsatisfied by order of the plaintiff, after a
delay of mine months after levy, must be taken as a release of the lien ac
quired not only by the execution, but in case of attachment, of the attach
ment lien also, so far at least as respects any junior liens.
2. The lien of attachment becomes merged in the judgment, and the only
effect of the attachment thereafter is to preserve the priority of the lien,
and this priority is maintained and enforced by issuance of execution. If
the plaintiff neglects to issue execution and loses his judgment lien thereby, the
attachment falls with it. The same degree of diligence is required to p * serve the priority of lien as is required in cases of execution issued upon
ordinary judgments without attachment. The proper office and use of an
execution is to enforce the collection of a debt and not to create a security.
3. A direction by the execution creditor not to levy, or not to sell, is prima
facie evidence that the writ is being used as a mere security.
4. In the absence of any statutory rule, and in the absence of fraud or

mala fides on the part of the judgment creditor, held, that one year is a
reasonable time within which to issue execution after judgment obtained
where personal property has been attached.
5. Where the same officer holds more than one writ, differing in priority,
he may sell under the junior, and the property cannot be taken under the
senior writ from the purchaser; the proceeds, however, must be applied to the
senior writ. But to pass title to the purchaser in such case the sale must be
fully consummated, the money paid and the property delivered.
6. A purchaser at execution sale under his own execution, may not be re
quired to pay the money to the officer, further than the costs of others; but
if there be a dispute about the application of the proceeds of sale in case of
more than one writ, the officer may refuse to deliver without payment or may
sell again.
Appeal from District Court of Boulder County.

Messrs. GEORGE and FAUNTLEROY, for appellant.
Mr. L. C. RocKwKLL, for appellee.
STONE, J.
This case was tried in the court below without
the intervention of a jury, upon the following agreed state
248

Speelman v. Chaffee
ment of facts, and the appeal is taken from the judgment of

the court entered upon the finding of the judge therein.
First. That in October, 1875, George C. Corning brought
suit by attachment against the Mining Company Nederland,
which was a foreign corporation organized under the laws of
Holland, which writ was made returnable to the January term

of the district court in and for Boulder county, Colorado, A.
D. 1876.
The said writ was levied upon all the real estate owned by
said company, and situate in the then territory of Colorado.
That upon the 18th day of January, A. D. 1876, the company
appeared in said suit and filed a plea, and upon the 18th day of
January, A. D. 1876, judgment was rendered in said suit by
said court for the plaintiff, and against said company for
thirty-two thousand four hundred and ninety dollars.
Second. That upon the fifth day of January, A. D. 1876,
Jerome B. Chaffee commenced a suit by attachment against
said Mining Company Nederland, which writ was also re
turnable to the January term of the district court, in and for
said Boulder county, Colorado, and was levied upon the iden
tical real estate which the writ in the Corning case was levied
upon, and in addition thereto the writ levied upon a large
quantity of personal property of said mining company.
That said suit was continued from the January to the July
term of said district court, 1876, when judgment was rendered
thereon in favor of Chaffee for forty-seven thousand nine hun
dred ninety-three and , dollars, against said company.
Third. That upon the 5th day of January, A. D. 1876,
Marc. A. Shaffenburg and Moses Anker, partners, as Anker &
Shaffenburg, also commenced a suit by attachment against

said Mining Company Nederland, which writ was made re
turnable to the January term, 1876, of the district court in and
for Boulder county, Colorado, and was levied upon the identi
cal real estate and personal property of said Mining Company
Nederland, which the writ of attachment in the Chaffee case
was levied upon.
APRIL TERM, 1880.
249
That upon the 19th day of July, A. D. 1876, the said dis
trict court rendered judgment in said case in favor of Anker
& Shaffenburg and against the said company, for fourteen

thousand four hundred and twenty-seven , dollars ($14,427.86).
Fourth. That upon the 5th day of January, A. D. 1876,
Moses Anker brought suit by attachment against said Mining

Company Nederland, returnable to the said January term of
the district court in and for Boulder county, Colorado; which
writ was levied upon the identical real estate and personal
property, which was seized under the writ of attachment in
the said case of Chaffee against the said Mining Company
Nederland, and said case was continued from term to term
until the February term, 1877, of said court.
That upon the 9th day of February, A. D. 1877, judgment

was rendered in said case in favor of said Anker, and against
said Mining Company Nederland, for one hundred and forty
thousand dollars ($140,000).
Fifth. That upon the 6th day of January, A. D. 1876,
Hiram R. Johnson bronght suit by attachment in the district
court in and for Boulder county, Colorado, against said Mining
Company Nederland, which writ of attachment was made re
turnable to the January term of said district court in and for
Boulder county, 1876, and was levied upon the same identical
real estate of said company upon which the attachment in the
said case of Chaffee against said company was levied.
That upon the 20th day of January, A. D. 1876, the said
District Court of Boulder County, rendered a judgment in said
case in favor of said Johnson, and against said company, for
the sum of two thousand, five hundred and twenty-four, and
twenty one-hundredths dollars ($2,524.20).
Sixth. That upon the 5th day of January, 1876, John S.
Brown and Junius F. Brown, partners, as J. S. Brown Brothers,
brought suit by attachment against the said Mining Company
Nederland, in the district court in and for Boulder county,

Colorado, to the January term thereof, 1876, which writ was
levied npon the identical real estate and personal property of
250
SUPREME CourT OF CoroRADo.

said company, which was seized under the writ of attachment

in the case of Chaffee against said company.
That upon the 3d day of August, A. D. 1876, the said dis
trict court rendered judgment in favor of said Brown Bros. in
said cause, and against said company for the sum of one
thousand and sixteen dollars ($1,016).
Seventh. That at the time of the issuing of said respective
writs of attachment, they were duly served and levied upon the
real estate and personal property of said company, and the
levy and seizure was properly indorsed on each writ, and the
proper certificates of levy in each case were filed and recorded
in the office of the clerk and recorder of Boulder county, and
the personal property was seized and held by the sheriff there
of; that personal service was had upon said company in each
and all of the foregoing cases, and that the estate of the said
company was liable to attachment when so served.
Eighth. That all the foregoing judgments, viz: that of
George C. Corning, Anker & Shaffenburg, Moses Anker, Hi
ram R. Johnson and Brown Bros., have all been properly
assigned to said Chaffee, who is now the owner thereof; that
the assignment of each judgment was made prior to Septem
ber, 1877.
Ninth. That each and all of said judgments now remain

in full force and effect, and in no way or manner paid or satis
fied.
Tenth. That upon the 6th day of April, 1876, Sible Speel
man sued the said Mining Company Nederland, in an action
of assumpsit in the district court in and for Gilpin county,
Colorado, and brought said suit to the May term thereof, 1876,
and upon the 4th day of May, 1876, it being the third day of
said term, the said company appeared in said cause, and filed
its plea of general issue, and afterwards and upon the 4th day
of May, 1876, judgment was rendered in said cause in favor of
said Speelman, and against said company, for fifty-three thou

sand ($53,000) dollars, which judgment is still in force and ef.
fect, and in no way satisfied or paid.
APRIL TERM, 1880.
251
Eleventh. That upon the 20th day of April, 1876, an execu

tion was issued upon the said Corning judgment, and delivered
to the sheriff of Boulder county, and was indorsed as received

by him the same day, but nothing was done under the same;
and upon the 12th day of May, 1876, it was returned by said
sheriff with the following indorsement: I hereby certify,

that I return this execution by order of the plaintiff without
having made any money thereon, and entirely unsatisfied.
(Signed) C. N. Hockaday, sheriff of Boulder county.
|
Twelfth. That upon the 12th day of September, 1876, an
alias execution was issued in the case of Corning against said
Mining Company Nederland, and on said judgment, and re
ceived by the sheriff of Boulder county on that day.
And upon the 12th day of September, 1876, said sheriff

made levy of said writ upon the real estate attached in said
suit.
And afterwards, the following indorsement was made by

said sheriff upon said execution, to-wit: I hereby certify.
that I returned the within writ by order of the plaintiffs attor
ney, unsatisfied; also, that I have held the within writ until
this day for costs; but the costs now having been paid, I now
return the same as per order.
Done this 4th day of June, 1877; signed, C. N. Hockaday,
Sheriff. That nothing more was done under the said execu
tion.
Thirteenth. That upon the 11th day of September, 1876, an

execution was issued by the clerk of the said district court in
and for Boulder county, on the judgment so as aforesaid, given
in favor of said Jerome B. Chaffee, and against said Mining
Company Nederland, which writ was delivered to the sheriff
of said Boulder county on the day of its issuance; and upon
the same day it was levied upon the real and personal estate
of said company, which was attached under said writ of attach
ment.
That afterwards the sheriff of Boulder county made the fol
fowing indorsement on said writ: I hereby certify that I
252

return the within writ by order of the plaintiffs attorney, un

satisfied; also certify that I have held the within writ until
this date for costs; and the costs having been paid in full by
plaintiff, I now return the same as per order.
Done this 4th day of June, 1877. Signed, C. N. Hockaday,

Sheriff. That nothing further has been done under said exe
cution.
Fourteenth. That upon the 15th day of September, 1876,

an execution was issued by the clerk of the district court of
said Boulder county in said case of J. S. Brown Bros. against
said Mining Company Nederland, on the judgment so as afore
said given in that case; which writ was delivered to the sher
if the same day, and upon that day the sheriff of Boulder
county levied the same upon the real estate only of the said
company attached in said suit; that nothing further was done
under said execution, until afterwards the sheriff of Boulder
county made the following indorsement upon the same:
I hereby certify that I returned the within writ by order
of the plaintiffs attorney, unsatisfied; also certify that I have
held the within writ until this day for costs; but the costs hav
ing now been paid in full, I now return the same as per order.
Done this 4th day of June, 1877. Signed, C. N. Hockaday,
Sheriff.
Fifteenth. That afterwards, and upon the 11th day of Sep

tember, 1876, an execution was issued out of the district court
by the clerk thereof, in the case of Anker & Shaffenburg, upon

the judgment so as aforesaid rendered in their favor and against
the Mining Company Nederland, which execution was deliv
ered to the sheriff of Boulder county on the day of its issuance,
and he levied the same upon the real estate and personal prop
erty of said Mining Company Nederland, which was attached
in that suit.
That nothing further was done under said execution, except

the sheriff of said county afterwards made the following in
dorsement thereon:
I hereby certify that I returned the within writ, by order
APRIL TERM, 1880.
253
of the plaintiffs attorney, unsatised; also certify that I have

held the within writ until this date for costs, but the costs now
having been paid in full by plaintiff, I now return the same as
per order.
Done this, the 4th day of June, 1877.
Signed,
C. N. Hockaday, Sheriff.
Sixteenth. That upon the 25th day of March, 1876, an exe
cution was issued by the clerk of said district court in and for
the county of Boulder, upon the judgment of Hiram R. Jolm
son against said Mining Company Nederland, and delivered to
the sheri' the same day, who levied the same upon certain
personal property not attached under the writ of attachment
in the case wherein the execution was issued, and such per
sonal property was sold, and brought some five hundred dollars,
which was indorsed upon the execution.
And afterwards, and upon the 1st day of September, 1876,
said sheriff returned said execution, unsatised as to the sum
of twenty-two hundred seventy-nine dollars, having made the
sum of four hundred twenty-one dollars only upon the same.
Signed, C. N. Hockaday, Sherifl'.
Seventeenth. That on or about the rst day of November,
1875, one James Pippin led his petition against said com
pany for a mechanics and miner-s lien in the district court
in and for Boulder county, and summons was issued thereon
returnable to the January term thereof, 1876, for himself and
others, which petition covered all the real estate of the said
Mining Company Ncderland in said State of Colorado, which
included all of the identical real estate attached under these sev
eral writs of attachment issued in the names of said Corning,
Chaffee, Anker and Shaffenburg, Anker alone, Brown Broth
ers, and Johnson, against said company; that such proceedings
were had under the said petition for lien; that upon the 21st day
of January, 1876, in the district court in and for Boulder
county, a decree was rendered on said petition in favor of said
Pippin and against said Mining Company Nederland, in the
sum of twenty-three thousand dollars ($23,000).
That the said attachment suits mentioned, and each and
254
SUPREME Com:/r or COLORADO.

Speelman v. Chalfee.
every of them, were made subservient to and subject to the

said lien. That upon the 15th day of September, 1876, the
master in chancery of the said court sold said real estate un
der the said decree for lien in said lien suit, and the same was
bid off by said Chaffee, and he received a masters deed there

for.
Eighteenth.
That upon the 29th day of December, 1877,
one Sible Speehn-an caused an execution to issue from the
district court in and for Gilpin county, directed to the sheriff

of Boulder county, on said judgment, against said Mining
Company Nederland, so as aforesaid rendered in May, 1876.
The sheriff, on the reception of said execution, proceeded to

levy the same upon all the personal property of said company
which was attached under the respective writs of attachment
issued and sued out as above set forth, and upon the 28th day
of January, 1878, the sheriff sold the said personal property

described in the complaint, for the sum of $2,200, and the same
was sold to said Speelman.
'
That on the 26th day of January, 1878, executions were
again issued in the cases of said Jerome B. Chaifee against

said company; Moses Anker against said company; Anker &
Sliaffenburg against said company, and in the name of Brown
Bros. against said company, and the name of Hiram R. John
son against said company, in their respective attachment suits
above named. And the sale of this identical personal property
so as above attached, took place under said respective execu
tions, and the property was bid off by Jerome B. Chaffee for
the sum of $2,200; that the said personal property so sold is
of the value of $2,200, and that the plaintiff demanded this
property of the defendant before suit was brought.

Eighteenth. Upon the foregoing facts, who has the better
title to said property, said Chatfee or said Speelman?
Nineteenth.
It is further agreed and stipulated, that the
above is all the evidence in the case, and these facts may be
('ousi(lered by the court, and this stipulation as to those facts
iha'l be taken and deemed by the court as a part of the record
APRIL TERM, 1880.
255
in this case, without any bill of exceptions; and in case either
party desires to appeal this case to the Supreme Court, they

shall have the right to do so, by simply giving bond for the
costs which may accrue.
Twentieth. That for the purpose of this suit, the returns of

the sheriff upon the respective executions above set forth are
to be treated as true; and the value of the personal property is

fixed at $2,200 for the purpose of this suit only.
(Signed):
LEwis C. RocKwKLL,
Attorney for plaintiff.

(Signed):
THOMAS GEORGE,
Attorney for defendant.

From this record it appears that liens were secured upon the
property by attachment in all the suits, except that of Speel
man, prior to the acquisition of any lien by the latter.
But it is contended by appellant that these prior liens were
abandoned and lost to appellee by laches on his part, and by:
conduct amounting to a fraud in law as against the rights of
the appellant.
In the cases of Corning and Johnson, the writs were not
levied upon the personal property in question, and hence need
not be considered as affecting the questions before us.
After judgments in the cases of Chaffee, Shaffenburg &
-
Anker and Brown Bros., executions were issued in those cases,
and the writs were levied upon the personal property in ques
tion in September, 1876.
In June, 1877, these writs were all returned on the same day
by order of the plaintiffs; in each unsatisfied.

It is to be observed that the returns were not nulla bona,
and, indeed, such a return could not truthfully have been

made, since property had been seized under all of the writs.
Obviously these returns at the instance of the plaintiff were
for the purpose of delaying a sale of the property taken in exe
cution. These executions were returnable in ninety days, but
were not, in fact, returned for nearly nine months, and were
256

then returned in the manner we have seen.
Such a return,
after the property had been levied upon nearly nine months
before, must be taken as a release of the liens acquired by the
previous attachments, as well as the executions and levy there
under, so far at least as respects any junior liens.

When in a suit by attachment the plaintiff obtains a judg
ment which by existing law is a lien upon the property
attached, the lien of the attachment becomes merged in that
of the judgment, and the only effect thereafter of the attach
ment lien upon the property is to preserve the priority thereby
acquired, and this priority is maintained and enforced under
the judgment by virtue of the execution issued thereon. As
the office of an attachment is to seize and hold property until it
can be subjected to execution, its lien is barren of beneficial re
sults to the plaintiff unless he obtain judgment, and thereupon
proceeds to subject the property to sale under execution. And
if through neglect of the plaintiff to subject the property to ex
ecution, the lien of the judgment be lost, that of the attach
ment falls with it.
228.
Drake on Attachment, sections 224 and

-
It would seem to follow upon principle that in cases of at

tachment against personal property, after judgment and exe
cution issued therein, the subsisting lien of the attachment
merges in that of the execution, in the same manner that an
attachment lien upon real property merges in the lien of the
judgment when obtained (Bagley v. Ward, 37 Cal. 121); and
hence the same degree of diligence is required to preserve the
priority of the lien as is required in cases of executions issued
upon ordinary judgments without attachment.
It is scarcely necessary to observe that a different rule of
law, regulated by statute, governs in the case of liens upon

real estate, where the judgment itself constitutes the lien,
which becomes dormant only when it expires by the limitation
imposed by statute; and until then the plaintiff may enforce
his lien without subordinating it to that of junior judgments.
In the case of attachment of personal property, it is incum
APRIL Tenn, 1880.
257
Speelman v. Cliaffee.
bent upon the attaching creditor to diligently prosecute his

suit to judgment, and within a reasonable time exercise his
right of sale in good faith with respect to other creditors, as
well as the defendant.
The only proper oice and use of an execution is to enforce

the collection of a debt, and not to create a security. Buirleig/L
v. Piper, Sup. Ct. Iowa, Oct. 7, 1879, 9 Cent. Law Jour. 347.
If the creditor seeks to convert it into a mere security, or to
prevent other creditors from subjecting the property to the
satisfaction of their claims, such conduct is to be regarded as
fraudulent in law, so as to render the property liable to subse

quent liens.
A. direction by the execution creditor not to levy, or not to
sell, is evidence prime facie that the writ is being used as a
mere security. Freeman on Executions, section 271. Meas
ured by these rules and principles we must hold that the pri
ority of the liens in the cases above named were lost to the
appellee and became postponed to the junior liens of the ap
pellant.
This view disposes of all the Chatfee judgments except one,
so far as regards the main question, and narrows the contest
down to the question of priority between the original execu
tion issued upon the Anker judgment on the one hand, and
the execution issued upon the judgment of appellant on the
other hand.
It is contended against the validity of the Anker lien that
it became impaired by reason of the great delay on the An
ker judgment, interpreted by the pla.inti"s conduct in with
drawing the execution on his own judgment, and neglecting to
issue one on this, for an unreasonable length of time after
judgment.
The stipulated facts show that the attachment writ in the
Anker suit was returnable to the January term, 1876, and that
said case was continued from term to term until the Febru
ary term, 1877, of said court.
We are not to presume that the case was continued without
17
'
._ .
258
SUPREME CoURT of CoLoRADo.

good cause. A contrary presumption, if any, must arise. It

cannot be interpreted to the prejudice of the plaintiff in the
light merely of the conduct of other plaintiffs who did not so
continue their own cases.
What is a reasonable time within which the execution should
in such case be issued after judgment? Upon this question the

court below found that any time within a year from the rendi
tion of judgment was a reasonable time. The Anker judg
ment was rendered February 9, 1877, an execution issued
thereon January 26, 1878, and clearly within the year. The
decisions cited from other States requiring a shorter time are
under statutes prescribing such period.
We have found no decision fixing a period outside of a stat
utory rule. The case of Van Lean v. A line, 10 Johns, 180,
cited by appellant's counsel for a rule at common law, makes
no reference to a common law rule, but on the contrary, cites
a case from a neighboring State in which the period was fixed
by statute. Under the law, as it stood when these proceedings
were begun, it is provided that the plaintiff in attachment
having obtained judgment, may thereupon take execution
for the same according to law, as provided in other cases of

debt. All the estate attached and not replevied, shall be sold
for and towards satisfying the plaintiff's judgment in the same
manner as such property is required to be when taken in exe
cution on a writ of fieri facias. R. S. Chap. VI, section 15.
Neither the General Laws nor the Code subsequently enacted,
prescribe any different mode of procedure. In order to preserve
a judgment lien against real estate, it is provided by our stat
ute that execution be issued at any time within one year after
judgment rendered. As to judgment liens upon personal prop
erty, no different rule has been prescribed.
In the absence,
therefore, of any statutory rule, by analogy to the rule referred
to respecting executions against real property, and in the ab
sence of fraud or mala fides on the part of the judgment credit
or, we regard as reasonable and correct the rule laid down by
the court below. Upon the statement of facts we cannot say
- - - -
APRIL TERM, 1880.
259
that there appears to have been fraudulent or unreasonable de

lay in prosecuting to judgment, or in proceeding to execute the
same on the part of the plaintiff in the Anker case. On the
other hand, from the same statement of facts it does not appear
that any execution was taken out by appellant until more than
nineteen months after the rendition of his judgment.
We are inclined to believe that a much shorter period than
one year in which execution should be taken out upon a judg
ment where personal property has been attached, would in
most cases best subserve the ends of justice with respect to all
parties affected by the judgment, but this is a matter for legis
lative, and not judicial authority, to determine. Some time
must of necessity be allowed in which to take out execution
after judgment, and were we without any guide whatever as to

a reasonable time save the statutes of other States, we might
well say that a much less time than one year was such reason
able time. But since the only guide our own law has fur
nishedthat respecting judgment liens upon real estatehas
doubtless been to a certain extent relied upon in practice for
many years, we think it would savor of trenching upon the
province of the legislature, should this court altogether ignore
that guide, even with the latitude it allows, and fix an arbi
trary limit, without a single rule to measure the proper boun
dary between one day and three hundred and sixty-five days.
The only other question to be examined is that relating to
the character and effect of the sale of the property under
which the appellant claims title.
It is insisted by counsel that, even allowing the sale to have
been made under a junior lien, yet the title passed thereby to
the appellant as purchaser.
It is doubtless true, under the authorities, that when the same
officer holds more than one writ, differing in priority, he may sell
under a junior writ; and if he does this, the property cannot,
merely under the senior writ, be taken from the purchaser. In
such case, however, the proceeds of the sale must be applied
to the writ having the prior lien. Freeman on Executions,
260

Sec. 196; Rogers v. Dickey, 1 Gilm. 643. But in order to

pass title to the purchaser in such case, the sale must be fully
consummated, the money paid and the property delivered to

the purchaser. Unless he fully complies with his bid and the
terms which such bid imposes, or offers so to do, he acquires
no right to the property, and can maintain no action or pro
ceeding in relation thereto. See Freeman on Executions, Sec.
300, and cases cited. To this rule is the exception, that if
the officer surrenders the property to the purchaser, or other
wise treats the sale as consummated, the officer becomes re
sponsible to the plaintiff for the amount of the bid. Ibid.

This is a suit in replevin, to sustain which the plaintiff be
low proves that he purchased the property at a sale upon the
Anker judgment, under which, by virtue of his execution

thereon, which related back to the date of the attachment levy,
he had, as we have shown, a prior lien upon the property.
A case is thus made prima facie. To overcome this, it was

incumbent on the defendant to establish not only that the
property was sold under his writ prior to the sale to the plaint
iff (which was done), but that the sale was consummated by
his paying the amount of his bid, or offering to do so, or that
by delivery of the property to him the officer treated the sale
to him as complete. Proof of such a state of facts is not sup
plied by showing that he owned the judgment under which
the sale was made, and that it was greater in amount than the
amount of his bid.
A purchaser at execution sale, under his own execution, will

not ordinarily be required to pay over the money to the officer,
further than the costs of others, but may receipt the writ, if
there be no other writ in the officer's hands claiming priority or
contribution. But if there be a dispute about the application
or the apportionment of the proceeds of sale, in case of more
than one writ, then the officer may refuse to deliver the prop
erty to the plaintiff so purchasing without payment, or may
sell again. Rorer on Judicial Sales, Secs. 1040, 1043.
In this case the appellant was a purchaser with notice of
APRIL TERM, 1880.
_ 261
-'3
Speelman v. Chaifee.
the prior lien, and in order to be entitled to receive and retain

the property, he should have paid the amount of his bid, since
the plaintiff holding the prior lien was entitled to the proceeds
of sale. Otherwise, the officer should have so treated the sale
as to have made himself liable to said prior lienor.

The record furnishes no such evidence on the part of defend
ant below. On the contrary, the fact of a resale to plaintiff
furnishes some ground for the conclusion that the oicer did
not treat the rst sale as consummated, but retained possession
and control of the property for resale, as he had a right to do,
if the rst purchaser failed to pay or tender the amount of his

bid. Rorer on Jud. Sales, Secs. 1043, 1066; Freeman on Ere
cutions, Sec. 301.
'
Upon this point the court below, in its written nding, says:
If it be said that the institution of this suit by the plaintiff
shows that defendant obtained possession of the property, this
is not enough. It must appear that defendant obtained pos
session from the oicer, or otherwise rightfully. The com
plaint alleges that he took the property from the plaintiff and
took it wrongfully. The evidence wholly fails to show that

defendant obtained possession prior to the resale of the prop
erty. The defendants sale took place January 28. The stip
ulation does not show the precise date of the sale to plaintiff,
but it could not have occurred prior to February 5, since his
executions were issued January 26, and ten days, the shortest
period which the law requires property to be advertised, carries
the date up to February 5.
The complaint alleges that the
defendant took the property from plainti"s possession on the
11th day of February. The answer only denies that on the

11th day of February the defendant wrongfully took the prop
erty from the possession of the plaintiff, and avers that on that
day, and prior thereto, the defendant was the owner of the
property.
Defendant could acquire no rights by possession
taken from the plaintiff against his consent after a sale to
plaintiff, and certainly not without payment of his bid to the
officer prior to the resale.
262
We think this view correct.
For aught that appears, the
defendant may have first acquired possession of the property

subsequent to the resale to plaintiff. The evidence fails to
establish, as a sufficient defense, that he acquired such posses
sion rightfully, as against the plaintiff. The questions pre
sented in this case we conceive to be important, and not with
out difficulty in determining, but upon a careful examination
of the case in detail, we are satisfied that the findings of the
court below are without error, and the judgment will there
fore be affirmed.
Judgment affirmed.
MEYER ET AL. v. BINKLEMAN.

1. Where the defendant answered, setting up the same defense relied
upon on demurrer, the demurrer having been overruled, held, that the am
swer was a waiver of the demurrer.
2. If it appears upon the face of the complaint that the action is barred
by the Statute of Limitations, and no facts are alleged taking the demand out
of the statute, a demurrer will lie; but if the fact does not appear upon the
face of the complaint, the defense must be made in the answer.
3. Section 1,692, General Laws of 1877, establishes a rule of evidence, and
not a rule of pleading.
4. Under the Code, where an answer contains no new matter, but merely
denies the allegations of the complaint, no reply is required.

Mr. George F. ADAMs, for appellants.

Mr. W. A. OFFENBAcireR, and Messrs. BLACKBURN & DALE,
for appellee.
BECK, J. The appellee brought suit in the district court
APRIL TERM, 1880.
2623
Meyer et al. v. Binkieman. -
against the appellants on three promissory notes, dated respect

ively December 15, 1869, January 5, 1870, and June 10, 1370.
The rst mentioned two notes were each payable three months
after date, and the last mentioned six months after date. The
complaint alleges that payments were made upon all the notes.
specifying the dates when they were made, and that a cer
tain amount of money remains due and unpaid on each note,
The dates of the last two payments alleged to have been made
on each note were April 2, 1873, and August 15, 1873.
A demurrerto the complaint was led, setting up the six
years Statute of Limitations. The demurrer was overruled, and
the same defense was set up by way of an answer.
The trial resulted in a verdict and judgment for the plain
ti.
The bill of exceptions having been stricken from, the record,
but two of the assignments of error are relied upon for a re
versal of the judgment, viz.:
wet. The court erred in overruling the demurrer.
Second. The pleadings admit that no payments have been
made on said notes by either of the defendants within six years,
and will not therefore sanction the judgment.
After defendants demurrer was overruled, they answered to
the complaint, setting up in the answer the same defense relied

upon in the demurrer.
This was a waiver of their demurrer.
'
The defense relied
upon was that the action was barred by the Statute of Limita
tions.
The cases of Smith v. Ric/zmond, 19 Cal. 477, and
Stu-rges v. Burton, 8 Ohio St. 215, cited by appellants coun
sel, lay down the familiar rule, that if it appears upon the face
of the complaint that the action is barred, and no facts are al
leged taking the demand out of the operation of the statute, a
demurrer will lie; but if the fact does not appear upon the
face of the complaint, the defense must be made in the answer.
There is nothing in these cases to support the proposition that
a complaint upon a promissory note, alleging payments there
on within six years, is demurrable if it fail to state that the
Z64

payments were made by or at the instance of the makers of

the note.
The case of K'enneZ_z/ v. Williarns, 11 Minn. 314, cited by
the same counsel, is in direct conict with the doctrine cou
tended for. Like the case at bar, that was an action on a

promissory note, for a balance alleged to be due. The com
plaint alleged that the sum of $454.50 had been paid thereon,
without stating when or by whom the payment was made.
The court said that for aught that appeared, the paymentmay
have been made at a date late enough to save the statute, and
that it could not therefore be said on the face of the complaint

that the action was barred.
The allegations of the complaint in this case are more spe
cic. It is alleged that payments were made upon each note
on April 2, 1873, and August 15, 1873.
Suit was instituted
April 2, 1879. N0 question can arise as to whether a pay

ment was made late enough to -avoid the effect of the St tnte
of Limitations, and no authority is cited which holds tlih it
must affirmatively appear in the complaint that the payment
was made by the defendant.
Neither does our statute contain any such requirement.
Section 1,692, General Laws of 1877, referred to in the brief
of counsel, is merely to the effect that the endorsement of a
credit upon a note shall not be deemed suicient proof that a
payment was made to take the ease out of the operation of
the statute. This section establishes a rule of evidence and
not a rule of pleading. It was not intended to lessen the effect
of a payment, but to require proof that a payment was in fact
made, whenever it shall be relied upon to revive an action
otherwise barred. \Vithout such a requirement there would
practically be no bar to an action upon a promissory note, for
the simple endorsement ofa credit without payment in fact,
would always operate to revive the cause of action. Under
the statute, however, the plaintiff must not only state a sub
sisting cause of action, but he must. prove such a cause.
That
the complaint is suicient in this respect, is apparent from the
1:2
APRIL TERM, 1880.

,
we
U1
Bradbury et al. v. Davis.
authorities already referred to. The case of V086 v. lVu0cZfo/-d.

29 Ohio St. 245, cited by counsel for appellee, is likewise an
authority in point. That was an action upon a promissory
note, which would have been barred by the statute but for sun
dry payments alleged to have been made thereon. The peti
tion did not state by whom the payments were made. Upon
this point the court remarked:
True, it is not alleged by whom they were made, but when
made the defendant was liable on the note, and the payments
ennred to his benet. There is no legal presumption or infer

ence from anything stated in the petition that they were not
made by him. If made by him the cause of action was not
barred against him. It is only when it appears airmatively
upon the face of the petition that the cause of action therein
stated is barred by the statute that such bar can be pleaded by

demurrer.
In regard to the objection to the judgment, that the omis

sion of the plaintiff to reply to the answer of the defendants,
amounted to an admission that the cause of action was barred,
we have only to say that the answer contained no new matter,
but was merely a denial of the allegations of the complaint,

and consequently required no reply. Bliss on Code Pleadings,
Sec. 396.
There being no error apparent in the record, the judgment
will be airmed.
.
Arined.
-~
BRADBURY 1~:'r AL. v. DAVIS.

1. Actions upon the ground of fraud must be instituted within three years
aft/er the discovery of the fraudulent acts relied upon as the ground of relief,
or be forever barred.
2. A quitrcl-aim deed is as effectual to pass the title to real estate as any
other, and the purchaser accepting such deed without notice of prior rights,
266
SUPREME Coum: or Cocouano.
will be as fully prote<t:1 as if his deed contained full covenants of warranty. /

3. In adopting substantially the statute of another State. the legislature
is presumed to have intended that such statute shall receive the same con
struction given it by the courts of the State from which it was adopted. /1
W.

Tun plaintiif in the court below, Davis, had judgment.
Messrs. Bnncxmmn & DALE, for appellants.
Mr. Gsonor: S. ADAMS, for appellee.
. B15011, J. The complaintin this case seeks relief on the ground

of fraud. It alleges the formation of a mining partnership
in the month of November, 1874, composed of the plaintiff,
Davis, and the defendants, Feely and Ellsworth, by the terms
of which partnership contract all the partners were to prospect
for silver mines, and to locate and develop such as might be
discovered for their joint benet, each partner to bear an equal
proportion of the expenses incurred, and each to own an equal

interest in the lodes discovered. It alleges that the Tecumseh
lode, on Game Ridge, Fremont county (now Custer county),
was discovered by defendant Ellsworth during the existence of
the partnership arrangement, and that it was staked in the
names and as the property of all the partners, but that after
wards the defendants Feely and Ellsworth, conspiring to de
fraud the plaintiff out of his interest therdn, destroyed the
location stakes, and then staked and located it in the name of

Feely alone.
That Feely conveyed one-fourth of the lode to
Ellsworth, and that Ellsworth and Fcely, by separate convey
ances, thereafter conveyed the entire lode to the other defend
ants. The complaint charges that all the conveyances were
made and accepted in fraud of the rights of the plaintiff; that
the purchasers had full knowledge of his rights, and that the
pretended conveyances given and accepted were deeds of quit
claim.
The prayer of the complaint is that the plaintiff be adjudged
ll
APRIL TERM, 1880.

'
267
to be the rightful owner of an undivided one-third' interest,
share and part in the mine; that the parties holding the legal
title to the property be ordered to convey to him; also that
the parties in control of the mine be required to account for
the ore mined and sold; likewise a prayer for further relief.
All the defendants, except Austin, interposed as a bar to the
action, pleas of the Statute of Limitation.
The statute relied upon (section 1682, General Laws 1877)
provides that bills for relief on the ground of fraud shall be
led within three years after the discovery by the aggrieved

party of the facts constituting such fraud, and not afterwards.
Upon the trial the appellants requested the court to give to
the jury the following instruction, which was refused: The
court instructs the jury that if they believe from the evidence
that Davis discovered the facts constituting the fraud he

(Davis) complains of in this action, to-wit: the location of the
Tecumseh mine on Game Ridge, in the name of Feely alone;
the sale of half. thereof to the Bradburys; the sale of one
fourth thereof to Ellsworth; and Ellsworths sale of one-fourth
thereof to Reed, more than three years prior to March 20,
1879, then the claim and action of Davis, plaintiff, is barred
by the Statute of Limitations, and they (jury) must nd for

the defendant._
V
The record shows that Davis discovered the alleged fraud
of destroying the location stake and the restaking of the lode
in the name of Feely, as early as February, 1875; it discloses
the fact that the conveyances to all of the defendants, except
the defendant Austin, were made prior to the year 1876. The
complaint was led in the district court March 20, 1879; the
plaintiff admits that Bradbury told him in December, 1874,
or January, 1875, that he had an interest or a half interest in
the mine, and that Reed informed him in the spring of 1875,
of his purchase of an interest therein; also that Ellsworth told
him, in the fall of 1874, that he and Feely had concluded to

keep the mine themselves. Davis, then, had full knowledge
of all the fraudulent acts complained of, and upon which he
268
SUPREME Counrr or COLORADO.

relies for equitable relief, with Hie single exception of the sale
to Austin, more than three years prior to the ling of his com
plaint.
'
This being the state of the evidence, the instruction referred

to was pertinent to the case-presented by the pleadings and
the testimony.
It should have been modied, perhaps, so as
to have specically excluded from its operation the defendant,

Austin, as to whom the Statute of Limitations was not pleaded.
The statute relied upon by the appellants, clearly applies to
eases of this character. Fraud is the substantive cause of ac
tion, and the policy of the law is that actions of this nature
shall be instituted within three years after the discovery of the
fraudulent acts relied upon as the ground of relief, or be for
ever barred. Pipe v. Smit/1., decided at present term; Sull

lette v. Tinney. 9 Cal. 423; Carpenter v. The City of Oak'
land, 30 Cal. 439. 1
A question arose upon the trial as to the e'ect of the quit
elaim deeds executed by the defendants, Feely and Ellsworth,
to the other defendants. Counsel for the appellee contended
that a purchaser accepting such a deed is chargeable with no
tice of all outstanding equities, although the same do not ap
pear of record, and the purchaser had not actual notice thereof.
This theory was adopted by the court below in its instructions
to the jury, and error has been assigned upon these instructions.
The substance of the third, fourth and lth instructions,
given at the request of the appellee, is that if the jury nd that

the purchasers accepted quit-claim deeds, such deeds were in
suicient to convey the equitable interest of the plaintilf, and
his rights under and by virtue of the partnership agreement to
an undivided one-third part of the mine did not pass thereby.
These instructions practically informed the jury that it was
not necessary that the defendants should have notice of these
equitable rights in order to produce such a result, since the
form of the conveyances operated as constructive notice of the
plaintiif sequities. V
We are of opinion that these instructions misconstrue the
APRIL TERM, 1880.
269
Bradbury et a.l. v. Davis.
law of this State, both as to the effect of an ordinary quit-claim
deed, and upon the subject of notice.

The form and effect of deeds, as well as what shall be deemed
to constitute notice of the execution thereof, are matters which
may be, and frequently are, regulated by statute. In such case,
to ascertain the effect of a particular conveyance, involves an

interpretation of the statute under which it was executed.
rather than an inquiry what rights would pass by such a deed
at common law or by the statutes of uses.
/ The provisions of our statute relating to the form, force and

effect of instruments for the conveyance of real estate, were
largely transcribed and adopted from the statutes of Illinois.
Those statutes adopted a different policy from that which an

ciently prevailed in respect to the distinctions between the dif
ferent forms of conveyance, and made the effect of a deed to
depend rather upon the intentions of the parties, than upon

the form of the deed. They also required all conveyances of
real estate to be recorded in the county in which the land lay,
and declared them void if not so recorded, as against subse
quent purchasers and encumbrancerswithout notice.
A junior deed, if rst recorded, has priority over a deed of
older date subsequently recorded, unless the grantee in the later
conveyance had notice of the prior unrecorded deed. The same
provisions substantially were incorporated into our own stat
ute.
"
The Supreme Court of Illinois, in construing these statutory

provisions, has decided that a quit-claim deed is as effectual
to pass the title to real estate as any other, and that the pur
chaser accepting such deed, without notice of prior rights,
will be as fully protected as if his deed contained full cove
nants of warranty, except where it appears from the convey
ance itself that it was not the intention of the vendor to con
vey the land in controversy. ll/[0Ci0nnell v. Reed, 4 Scam.
117; Buttereld v. Smith, 11 Ill. 485; Brady v. Spark, 27

Ill. 482; Morgan v. Clayton, 61 Ill. 35.
These decisions are expressive of the plain import of these
\I
K.) Q

P. & A. v. R. 1100.4. Rudd et al.
sections of our statute. The rule of construction therefore

applies, that in adopting substantially the statute of another
State. the legislature is presumed to have intended that such

statute shall receive the same construction given it by the
courts of the State from which it was adopted.
This being our view of the construction to be given the
statute, it becomes unnecessary to review the other line of
authorities cited concerning the effect to be accorded to such in

struments of conveyance. They appear to be based on dissim
ilar statutory provisions in so far as they are variant from
the construction here adopted; consequently such decisions
cannot aid in the interpretation of our statute.

It is unnecessary to consider the other errors assigned, save
to observe that the form of the decree is objectionable in grant
ing legal reliefinstead of the equitable relief prayed for in the
complaint.
For the errors mentioned the judgment must be reversed and

the cause remanded.
Reversed.
THE PUEBLO & Amunsas VALLEY R. R. Co. v.

Rum) ET AL.
1.
Where there is a, failure to comply by the commissioners with the re
quirements of the act to provide for the exercise of the right of eminent do
main, the court or judge may set aside the report, or re-submit and direct a
further nding.
2.
Where a report failed to show that the question of benets was con
sidered by the commission, the report should have been set aside or re-submit
ted.
3. The statute must be strictly construed.
Appeal from Count}; Court Qf Fremont County.

Tm-; case is stated in the opinion.
APRIL TERM, 1880.
[O \l b-l
P. & A. V. R. R. Co. v. Rudd et al.
Mr. Cims. E. GAST, for appellant.

Messrs. Sazurson & Loon, for appellees.
ELBERT, C. J. Thiswas a proceeding instituted by the ap

pellant company to acquire the right-of-way over lands of the
appellees, under the provisions of Chapter 31, General Laws

(p. 396), entitled An act to provide for the exercise of the
rights of eminent domain.
'
Section 18 of the act provides that the report of the com
missioners or the verdict of the jury in every case shall state:
First, an accurate description of the land taken; second, the

value of the land or property actually taken; third, the dam
ages, if any, to the residue of such land or property; and
fourth, the amount and value of the benet.
It is assigned for error that the commissioners appointed to

ascertain the compensation proper to be made to the owners.
failed to comply with the requirements of this section, in that
they did not state in their report the amount and value of
the benet.
Upon the incoming of the report, the appellant moved to set
it aside, and for a re-submission.
The failure to comply with the statutory requirements ap

pears upon the face of the record. \Vhen the assessment is
made by commissioners, the statute makes no provision for
excepting, or in any manner objecting to their report.
Notwithstanding the silence of the statute, the power of the
court or judge to set aside the report when it does not in sub
stance comply with the requirements of the statute, or re-sub
mit and direct a further nding in accordance with such re
quirements, is necessary to effectuate the objects of the statute.
It cannot be said that the court or judge must accept such re
port as the commissioners may choose to le, however little it
may comply with the provisions of the statute.
This would
be to defeat the law.
The report failing to show that the question of benets was

considered by the commissioners, we think it should have
272
SUPREME Counr OF COLORADO.

P. & A. V. R. R. Co. v. Rudd et al.
either been set aside or re-submitted to the commissioners for

further action and amendment.
Statutory provisions touching the exercise of. the right of
eminent domain, must be strictly pursued. Dwarris, 381.
In California and Pennsylvania, under like statutes, it is
held that the report of the commissioners should show on its
face a strict compliance with the provisions of the statute.
C. P. R. R. O0. v. Pearson, 35 Cal. 247; Ohio (f: Penn. R.
13. Co. v. Wallace, 14 Pa. 247.
In the last case the same question arose respecting the re

port of the commissioners, as is here presented. Rogers, J.,
says: The directions of the act so far from being directory
merely, are as mandatory as language can make them. The
assessors are imperatively commanded, not as heretofore, as in
other acts, not only to consider in their estimate of damages
the benet as well as iujnry' which the owner has sustained, but
to spread on the face of their report, and make it part of the

award, not only the value of the property taken or the damage
done to it, but specically to set forth the benet, if any, ac
cruing to the owner from the railroad, and the difference be
tween- the damage done to the property taken. The object of

the legislature evidently is to put an end to lumping estimates
of the compensation to which the owner is entitled, by making
it the duty of the appraisers to show on the face of the report
the means by which they arrived at the result of their estimate.
And the provision no doubt was introduced into the act for the
benet not only of the company, but of the owners of the land,
furnishing data to the courts in whom isinvested asupervisory
power over the appraisement, by which they may more read
ily and certainly determine whether injustice is done by the
award.
The appraisers wholly omit to mention the
value of the advantages to the owner resulting from the road.

The award was set aside, as not complying with the provis
ions of theact.
The Pennsylvania statute here considered, required from the

appraisers a report setting forth the value of the property
APRIL TERM, 1880.
273
Stebbins v. Anthony.
taken, or damages done to the property, the amount of benefit

conferred, and the difference between the damages done to the
property taken, which they assess to such owner or owners

separately.
The language of our statute is equally explicit and manda

tory as to what the report shall set forth. If the commission
ers may omit one, they may omit any finding which the law
requires that they make and report.
If there were no benefits, it should have been so reported,
that the court might know and the record affirmatively show
that the matter of benefits was considered.
The decree of the court is reversed, and the cause remanded
for further proceedings.
Reversed.
STEBBINS v. ANTHONY.
1. The office of a writ of error being fully explained by the common law,
and Congress having authorized this court to issue it, the jurisdiction to hear
and determine causes brought into this court by means of this writ, was com
plete without further action on the part of the legislature.
2. The constitution of the State took the place of the organic law of the
-
territory in continuing the writ of error from this court to the county courts.
Error to County Court of Jefferson County.

Mr. E. L. JoHNSON, for defendant in error.

4.
Mr. Thomas GEORGE, contra.

STONE, J. The propositions laid down by counsel in his
brief, in support of the motion, referring to the several acts of
18
274

the Territorial Legislature respecting the probate courts, to

gether with his interpretation of the saving clauses in the
repealing statutes of the General Laws and in le Code, are
undoubtedly correct; but the conclusions drawn therefrom

by counsel are untenable, as being in conict with the para
mount law of the organic act as amended, and the constitution
of the State.
The act of Congress of March 2, 1863, ainendatory of the
organic act, declares that writs of error, bills of exceptions
and appeals, shall be allowed from the nal decisions of said
district and probate courts to the Supreme Court, under
such rules and regulations as shall be prescribed by law. It
is true, as counsel contends, that the Territorial Legislature, con
ceiving that it was necessary to enact by statute a mode of

carrying into effect this provision of the organic act, did, to a
limited extent, so enact, and afterwards repealed the same
with respect to probate courts; but it is equally true that in so

far as the legislature attempted to deny or take away a. right or
power conferred by the act of Congress referred to, such legis
lation was in contravention of the organic law. This act con
tinued in force until May 4-, 1870, when it was repealed, but
was re-enacted July 14, 1870; so that with the exception of

this short interval of seventy days between the dates just
mentioned, the writ of error lay from the Supreme to the pro
bate court by virtue of the acts of Congress aforesaid, from
1863 up to the time they were superseded by the constitution
of the State.
The only question that could arise upon the authority to is
sue the writ, is whether legislation was not required to carry
into effect the authority conferred by the act of Congress, cou
pled with the clause under such regulations as shall be pre
scribed by law. This very question was raised in the ease of
Lies v. Wilcomen, 2 Col., where the subject is thoroughly dis

cussed in the opinion of Chief Justice Hallet, and it was held
that statutory enactments were not essential to carry into etfect
the authority conferred by the act of Congress to issue the writ
APRIL TERM, 1880.
275
and proceed thereunder, inasmuch as the practice was well

enough regulated by the common law, under which this writ
originated.
The court say in that opinion: The office of
the writ of error is fully explained by the common law, and
Congress having authorized this court to issue it, the jurisdic
tion to hear and determine causes, brought into this court by
means of this writ, is complete without further action of the
legislative assembly. * - * * The writ of error was framed
and fully equipped for service by the common law, in which
condition it is believed that it has been transmitted to us.
The act of Congress of July 14-, 1870, which we have referred
to as containing the writ, declares that writs of error shall be
allowed from any decision of a probateqcourt to the Supreme
Court of said territory in the same manner they were allowed
before the passage of the act of May 4th, and the court in
the case cited upon this say further, if it should be conceded
that the practice prior to May 4th, 1870, was unwarranted,
it must also be conceded that it was revived and sanctioned by
the later act; so that if we are wrong in supposing that a per
fect writ was given by the act of 1863, we can not be wrong
in saying that it now exists.
The constitution of the State took the place of the organic

law of the territory in continuing this writ to the probate
court, which became, under that constitution, the county
court, and all rights under the organic act were carried over
to the courts of the State by the second saving clause in section
one of that part of the constitution denominated the schedule,
so that there can be no doubt upon the question in the case

before us. Nor could a different rule be applied to the probate
court of Jetferson county, by reason of any Territorial legisla
tion a"ec-ting the writ of error; for, as we have seen, by virtue
of the acts of Congress, and the common law which we adopted,
and which carried with it as an incident of practice, the writ

of error as an existing common law process fully equipped
for service, so that with the exception of the short interval
mentioned there has been no time from 1863 to the present
276
Stratton v. The People.
when the writ of error did not lie from the Supreme to the
probate court of any county in the Territory or State.

The cases of Willoughby v. George, 4 Col. 22, and Lund in
v. Kansas Pacific Railroad Company, Id, cited by the learn
ed counsel in his quite ingenious argument as authority for

constituting the proviso in section 447 of the Code, as he ex
presses it, the solitary tabula in naufragio, by which the
writ was preserved to cases pending before the Code took effect,
refer only to district and not to probate courts; the writ to the
latter court, although not to the former, being shielded from
the Code by the express terms of the constitution. To this ex
tent the constitution itself becomes a saving tabula in the
destroying naufragium in which the Code sought to engulf
the common law.
The motion to dismiss the writ will be overruled.

JMotion overruled.
STRATTON. V. THE PEOPLE.

1. Conscientious scruples against the infliction of the death penalty, do not
in a capital case, necessarily disqualify the juror entertaining them.
2. If notwithstanding his conscientious scruples he will render a verdict
in accordance with the law and the evidence, and if upon this point his an
swers have no uncertainty, this is all the law requires.

3. When the court upon its own motion or upon the application of a juror
in the exercise of its discretion in the matters of excuse or exemption, excuses
a juror for an insufficient cause, it is no ground for reversal. But the rule
cannot be applied when there was a challenge for cause, and a judgment upon
the challenge.
4. Under the statute (Secs. 812 and 1,479, Gen. Laws), after the regular
panel has been exhausted, the court may order a tales, but the prisoner has
the right to object to the depletion of the panel on insufficient grounds.

APRIL TERM, 1880.
277
Messrs. BRowNE & PUTNAM and Mr. J. Q. A. KING, for plain

tiff in error.
The ATToRNEY-GENERAL, for defendants in error.

ELBERT, C. J. The plaintiff in error was indicted for the
murder of one Daniel Farr, tried at the January term, 1879,
and convicted of manslaughter. The only errors complained
of were in the selection of the jury. The jurors, Cheever,
Roblin and Eyser, stated in their examination that they were
opposed to capital punishment, and were then challenged for
cause by the people. On the further examination of Cheever
and Roblin, it was disclosed that on their consciences and on
principle they thought the law which provided for the inflic
tion of the death penalty in any case was wrong, but they each
announced that if they were empaneled as jurors in a jurisdic
tion where the law provided the punishment of death for
crime, and the evidence in the case required them to return a
verdict which would result in a death-sentence, they could,
notwithstanding their conscientious scruples, return such ver
dict, and would make their scruples subservient to their duty
as jurors.
The exclusion of these three jurors upon the grounds stated
is assigned for error.
Upon the jury as finally constituted there were two talesmen.
Conscientious scruples against the infliction of the death-pen
alty do not necessarily disqualify a juror entertaining them.
They must be such as would preclude him finding a verdict of
guilty in a capital case, or from trying it fairly. Bishop's
Crim. Practice, Sec. 918, and cases cited.
The juror's oath gives the measure of his duty. He is to

well and truly try the issue joined, etc., and a true verdict ren
der according to the law and the evidence.
If notwithstanding his conscientious scruples, he will render
a verdict in accordance with the law and the evidence, and if
upon this point his answers leave no uncertainty, this is all the
law requires. Beyond this the possibility of an advantitious
278

advantage to the prisoner, springing from the jurors convic

tions on the policy of the law, is an impracticable renement
which courts will not pursue.
In the case of the Commonwealth v. Les/ter, 17 S. and R.
155, the juror answered, that he had conscientious scruples
on the subject of capital punishment, and that he would not,

because he conscientiously could not, consent or agree to aver
dict of murder in the rst degree, death being the punishment,
though the evidence required such a verdict. This was held

(Gibson, J., dissenting) good cause for challenge.
In the case of Gates v. T/ae People, 14 Ill. 434, the juror
answered, that he should be very reluctant to render a verdict
of guilty of an offense punishable with death, even if his judg

ment was convinced of the prisoners guilt; that he would prob
ably be the last juror to agree to such a verdict, but he did not
know but what he might be starved to render it; he thought
he should hang the jury and thus defeat a verdict of guilty.
Treat, 0. J. says: A uror ought to stand indifferent be
tween the prosecutor and the accused. He should be in a con
dition to nd a verdict in accordance with the law and the evi

dence.
On principle it is a good cause of challenge to a juror
in a capital case that he has conscientious scruples on the sub

ject of punishment by death, that will prevent him from
agreeing to a. verdictof guilty. * * * It would be a mock
ery togo through the forms of a trial with such a person on
the jury. The prisoner would not be convicted, however con
clusive
theiproof of his guilt.
In the case of the State v. Ward, 39 Vt. 233, the answer of
the juror left it, in the language of the court, uncertain
whether he would have been governed by the proofs in the
case, or by his conscientious scruples, as to the right to punish

with death, and it was held that the juror was rightfully ex
eluded.
It will be observed that in all these cases the conscientious

scruples of the juror were such as would preclude him from
nding a verdict in accordance with the law and the evidence

or, as in the last case, to leave it in doubt.
APRIL TERM, 1880.
279
In the case of Commonwealth v. Webster, 5 Cush. 298, the

juror answered that he was opposed to capital punishment,
but that he did not think that his opinions would interfere
with his doing his duty as a juror; that as a legislator he should
be in favor of altering the law, but he believed that he could
execute it as a juror as it was. The court intimated to the
juror that he must decide for himself whether the state of his
opinion was such as would prevent his giving an unbiased ver
dict; that as he had stated it the court did not consider him
disqualified.
In the case of The People v. Wilson, 3 Parker's C. R. 202,
the juror first stated that he was opposed to the punishment
of death, but said if sworn as a juror on a trial for murder,
and the evidence of guilt was clear, he would find the accused
guilty. The challenge was overruled. After being accepted

and sworn, the juror corrected his former statement"by saying
that he could not under any circumstances convict one on a
charge for murder. The decision that the juror was competent
was vacated, the challenge opened, and the juror was set aside.
In the case of People v. Stewart, 7 Cal. 140, the juror an
swered that he was opposed to capital punishment on princi
ple. He was held not disqualified, as it did not appear that
his conscientious scruples would, in the language of the stat
ute, preclude him from finding the prisoner guilty.
These citations sufficiently illustrate the distinctions taken
by the authorities. Conscientious scruples, to disqualify, must
be such as to preclude a finding of guilty in accordance with
the law and the evidence.
And this is substantially the statutory rule, so far as we

have been able to ascertain, in those States where the subject
has been matter of legislation.
Where the court upon its own motion, or upon application
of a juror, excuses a juror for an insufficient cause, it is not

ground for reversal. The trial having been by a jury of good
and lawful men, the prisoner cannot have been prejudiced.
Bishop Crim. Pro. Sec. 926; United States v. Cornell, 2

Mass. 91; People v. Arcio, 32 Cal. 40.
280

The rule, however, appears to be confined to cases where the

court exercises its discretion upon matters of excuse or exemp
tion. We find no case in which it has been applied where
there was a challenge for cause, and a judgment upon the chal
lenge.
The distinction seems to be that parties may object to the
fitness of a juror and except to the judgment of the court re
specting it, but they have nothing to do with his exemptions
or excuses, upon which the court exercises a necessary and
-
conceded discretion.
The reason of the distinction is, perhaps, to be found in the

humanity of the law, which scrupulously guards the rights of
the prisoner and challenges their least infraction. After the
regular panel has been exhausted, the court may order a tales
(General Laws, sections 812, 1479), but the prisoner has the
right to object to the depletion of the panel on insufficient

grounds.
Every person charged with murder must be furnished, pre
vious to his arraignment, with a list of the jurors. (General
Laws, Sec. 814.) This is not an unimportant right. It gives
the prisoner and his counsel an opportunity to inquire con
cerning, and consider upon the character, dispositions and rela
tions of those composing the regular panel, and to select such
as they think will give the prisoner a fair and impartial trial.
When the irregular action of the court compels a resort to tales.
men, this right is impaired. Atkins v. The State, 16 Ark. 581.
In the case of People v. Stuart, 7 Cal. supra, Murray, J.,

says: It is enough for us to know that the result might have
been different; that the prisoner was entitled to be tried by a
panel summoned in a particular way, and that the court erred
in deciding that one of the jurors was incompetent.
The answers of the jurors, Cheever and Roblin, in the case

at bar, did not show them disqualified, and the court erred in
sustaining the challenge.
The judgment of the court below is reversed and the case
-
remanded.
I'eversed.
APRIL TERM, 1880.
281
Murphy v. Cobb et al.
MURPHY V. COBB ET AL.

Where the plaintiff shows upon the trial no cause of action, or makes out
no case whatever, and no motion for nonsuit is interposed, it is not only the
right, but may be the duty, of the court to direct a verdict for the defendant.
This practice is common to both the Code and the Common Law.
Appeal from District Court of Summit County.

Messrs. WHITE & MULLAHEY and Mr. W. R. BARTLETT, for
appellant.
Mr. J. F. WELBoRN and Mr. R. S. MoRRIsoN, for appellees.
STONE, J. The appellant, who was plaintiff in the court
below, brought suit for the possession of certain parcels of
placer inining ground, alleged to be in the possession of defend
ants, and from which plaintiff had been wrongfully ousted;
that he claimed, by right of preemption under the mining
laws, and also by deed from other like preemptors. The de
fendants denied plaintiff's right of possession, and claimed
prior occupation by themselves as owners of the ground, with
present possession by right of such ownership. From the
plaintiff's own testimony it appeared that he with two others
had taken possession of a portion of ground belonging to de
fendants during the temporary absence of the latter, had sur
veyed and filed locations of the same, and that the two other
persons had then deeded their interest in the same to the
plaintiff. At the conclusion of the plaintiffs testimony he
offered in evidence these deeds and location certificates.
The court refused to admit these papers as evidence in the

case, and directed the jury (plaintiff having no further testi
mony to offer) to return a verdict for the defendants, which

was done, and judgment entered accordingly. From this
judgment plaintiff appealed, and assigns for error the refusal
of the court to admit in evidence the papers referred to, and
in directing the jury to return a verdict for defendants.
282

Humphreys, etc., v. Mooney.
There is no error disclosed in the record.
Plaintiff's own
testimonyand there is no other in the caseshows clearly

that it was a bold attempt on his part, aided by his two con
federates, to jump a portion of the ground of his employers.
The ground was not subject to re-location; in mining parlance,
it was not jumpable, and no rights whatever were or could
be acquired by plaintiff, or those acting with him by virtue of
their survey and record of location. The certificates of such
location and the deeds from his co-trespassers, were evidence
only of a possession which plaintiffs testimony had established
as a mere trespass. In every case, where the trial is to a jury,
there is, or may be, a preliminary question for the court to de
terminenot whether there is literally no evidence, but whether
there is any upon which a jury can properly proceed to find a
verdict for the party producing it, upon whom the burden of
proof is cast. Commonwealth v. Clark, 4 Otto, 278.
And where the plaintiff shows upon trial no cause of action,
or makes out no case whatever, and no motion for nonsuit is
interposed, it is not only the right, but may be the duty of the
court to direct a verdict for the defendant. Teft v. Ashbaugh,
13 Ill. 602. This practice is common to both the Code and the
common law. Proffatt on Jury Trials, Secs. 3514, and cases
cited.
The judgment of the court below is affirmed.

Affirmed.
HUMPHREYs, Impl. etc. v. Moon'EY.

1. As a general rule it is quite well settled that the validity of the exist
ence of a corporation cannot be questioned collaterally.
2. The omission from the certificate of incorporation of the latter clause
in section ninety-three of the incorporation act as to the assessability of the
stock of a mining corporation, cannot in the absence of fraud, be regarded as
DECEMBER TERM, 1SS0.
283
essential to the corporate existence in an action by one against the individua

members upon a contract with the company.
3. One accepting the obligation of a company as the engagement of a cor

poration clothed with statutory liability only, and treating with them as such,
is presumed to have known the extent of that liability and to have acted with
reference thereto.
4. No provision is made by which individual liability attaches to members

of a corporation by reason of any omission to organize in the manner pre
scribed by the incorporation act.
5. The statute does not require that incorporators or officers shall be rei
dents of the State, nor that the certificate of incorporation be executed within
the limits of the State; nor does the statute in terms require a meeting of
the incorporators prior to the execution of the certificate.
6. The execution of a certificate of incorporation under the statue is anal.
ogous to the execution of a deed of conveyance and is of no validity with:

out delivery.
It is the filing of the certificate that brings the corporation into
existence.
7.
Under the statute (section 18, Incorporation Act) meetings of the direc
tors may be held beyond the limits of the State if provision therefor be made
in the certificate of incorporation.
8. The annual meeting of the stockholders for the election of directors

held without the State, although irregular and illegal, cannot be taken ad
vantage of in a collateral proceeding by either the corporation, or one con
tracting with it as such.
9. The persons who are named by the corporators in the certificate as di

rectors for the first year are created such directors by operation of law, and
not by election of the stockholders after the corporation is formed.
10. While a failure to record a duplicate of the certificate of incorporation
in the county where the operations of the company are carried on may be such
a non-compliance with the law as would authorize the people to sustain a writ
of quo warranto or scire facias, and to oust the corporation from the exercise
of their franchise, yet it does not follow that as to third persons it is not a cor
poration.

.#
The plain
tiff below had judgment.
Messrs. RocKwKLL & BIssELL and J. E. Rockwell, for appel

lant.
Messrs. WELLs, SMITH & MACON, for
appellee.
284

STONE, J. The first question presented in this case, is

whether the appellee, the plaintiff in the court below, could
question the validity of the corporation, in a suit upon a con
tract he had made with it.
A few cases may be found in which, under the given facts,

the legal existence of a corporation has been allowed to be
questioned in a collateral proceeding; but as a general rule it
seems quite well settled that the validity of the existence of a
corporation cannot be questioned collaterally.
Several distinctions, however, have been made in the cases
covered by both the general rule and the exceptions, dependent

upon the conditions of the charter, the terms of a general in
corporation statute, whether the suit is between the corpora

tion and one of its members, or a stranger, what the particu
lar object of the suit may be, and whether the de jure exist
ence of the corporation is sought to be questioned, or whether
it be the regularity of the organization of a de facto corpora

tion that is attacked.
Without going into an examination of the cases to illustrate
all these distinctive phases of the subject, it is sufficient to

notice only the most important distinctions bearing upon the
case in handthe difference between the illegal existence of a
corporation ab initio on the one hand, and on the other hand
an assumed corporation based upon a charter or statute law

fully authorizing it, but irregularly or defectively organized.
In the former case it has been held that one dealing with a .
corporation is not estopped to deny its legal existence on the
ground that there was no valid law or authority for the organ
ization, or that the assumed organization was in the face of a
prohibition by statute nisi, in that there was a failure to comply

with an express condition precedent requiring certain acts to be
performed before the corporation can be considered in 2sse, or its
transactions possess validity. Mokelumne H. M. Co. v. Wood
bury, 14 Cal. 427; Lessee of Frost et al. v. Frosburg Coal Co.

24 How. 283; //easton v. Cincinnati, etc. R. R. Co. 16 Ind.
279; Abbott v. Omaha Smelting Co. 4 Neb. 423; Hildreth v.
-s:
285
McIntire, 19 Am. Deci's and notes, 67; Stowe v. Flagg, 72

Ill. 401.
In Heaston v. Cincinnati R. R. Co. supra, it is said that

the issue of nul tiel corporation is upon the existence of a de
facto corporation where it is de jure authorized, and that upon
this fact rests the doctrine of estoppel to deny the existence of
the corporation in certain cases, the estoppel goes to the mere
de facto organization, not to the question of legal authority to
organize.
While some diversity of opinion is found in the courts of

different States as to when the existence of a corporation may
be questioned, if at all, in a collateral proceeding, the authori
ties are almost unanimous in holding that such collateral in
quiry cannot be made touching the corporate existence of a de
facto corporation where there was lawful authority for its
creation. Cochran v. Arnold, 58 Pa. St. 405; Rondell v. Fay,
32 Cal. 351; Baker et al. v. Adm'r of Backus, 32 Ill. 110;
Tarbell v. Page et al. 24 Ill. 46; Jones v. Cin. Type Found
ery, 14 Ind. 89, Hubbard v. Chappel, Ibid. 601; Heaston v.
Cin. etc. R. R. Co. 16 Ind. 279; Mokelumne H. M. Co. v.
Woodbury, supra, Washington College v. Duke, 14 Iowa, 17;
AS!ocum v. Providence, etc. Co. 10 R. I. 114; 1 Redfield Law
of Railways (5 Ed.), 73; Ang. & Am. Corp. (10 Ed.) Sec. 635.
In the case before us, the appellee, Mooney, brought an ac
tion against Humphrey, together with other persons, members
of an assumed corporation, to recover a sum of money due up
on an obligation given therefor by said company, through its

agent, and it is sought to hold the defendant, Humphrey, indi
vidually liable as a partner, the defendants being declared

against as partners. Defendant's answer denies the alleged
partnership, and sets up the corporation, organized under the
general incorporation law of Colorado as the Trenton Dress
ing and Smelting Company. Plaintiff replies, averring the

non-existence of the corporation. The evidence in support of
this averment rests upon certain omissions in the articles of
incorportion, and alleged irregularities in the organization of

the company as a corporation.
286

In the case of Baker et al. v. The Adm'r of Backus, supra,
where a bill was filed against certain defendants, who pur

ported to form a corporation, but who, as alleged, had not com
plied with the statutes, and the prayer of the bill was that
the company be decreed to be a general co-partnership; or if
it should be declared a corporation, then to be dissolved by
order of court, the opinion gives, besides the general rule that
a direct proceeding on behalf of the State is necessary in such
case, the additional reason that the corporation should be
made a party defendant to the action. All bodies should be
allowed the privilege of being present at their own dissolution,
is the rather striking and forcible language used by Mr. Jus
tice Breese upon this point.
The principal point relied upon as ground for alleged non
compliance with the statute and consequent illegality of the
corporation, is based on the latter clause of Sec. 93 of the cor
poration law of Colorado relating to mining companies, and
which reads as follows:
The certificate of incorporation of any such company, in

addition to the other matters required in this act to be stated
therein, shall contain a statement that the stock of such com
pany is either assessable or non-assessable, and each certificate
of stock issued by any such company shall have plainly printed
on the face thereof the word assessable' or non-assessable, as
the case may be.
This statement was omitted in the articles of incorporation

of the Trenton Dressing and Smelting Company, and this is
urged as fatal to the legal existence of the company as a cor

poration.
By reference to the 2nd and 3rd sections of the Corporation
Act, it will be seen that after enumerating the specifications
which the articles of association shall contain, it is provided that
a copy shall be filed with the Secretary of State, and a copy
with the recorder of each of the counties where the principal
business is to be carried on, and that when so filed the Secre
tary of State shall record and preserve the same in his office,
\I
l0G1
and that a certied copy thereof under the seal of the State
shall be evidence of the existence of the company.

It will be observed that none of the statements which the
certicate of incorporation is directed to contain, are required
to be made as condition precedent to the commencement or
continuance of business by the corporation.
In the case of Abbott v. T/L6 Omaha Sznelting Company,
supra, cited by the appellee as an authority against the valid
ity of the corporation, the decision turned upon the particular
language of the statute of Nebraska, which required that the
corporation previous to the commenpement of a/ny business
except its own organization* * * must adopt articles of in
corporation and have them recorded in the ofliice of the clerk
of the county, etc., and it was held that the company was not
in existence" for the purpose of transacting business as a cor
poration nntil such record had been made, and the court point
out the distinction between that case and the California case
of the llfokelumne U0. v. lVo00Zburg/, supra, wherein it is laid

down that there is a broad and obvious distinction betwe;-n
such acts as are declared to be necessary steps in the process
of incorporation, and such as are required of the individuals
seeking to become incorporated, but which are not made pre
requisite to the assumption of corporate powers.
In respect
to the former, any material omission will be fatal to the exist

ence of the corporation, and may be taken advantage of col
laterally in any form in which the fact of incorporation can be
called in question. In respect to the latter, the incorporation
is responsible only to the government in a direct proceeding
to forfeit the charter. The right * * * to be considered a

corporation and the exercise of corporate powers depends upon
the fact of the performance of the particular acts named in
the statute as essential to its corporate existence.
The case before us certainly falls within this latter class.

The specication respecting the assessability of the stock can
not, in the absence of fraudulent intent, be regarded as essen
tial to the corporate existence in this case. Wliat the relative
288

Humphreys, etc., v. -Mooney.
importance may be in the several statements directed to be set
forth in the articles or certicate of incorporation, or whether

the omission of any one or more of them might be considered
fatal to the existence of an assumed corporation, or its right
to the exercise of corporate powers when inquired into by a

direct proceeding for that purpose. we need not now determine.
The evidence in the case embracing a certied copy of the
duly recorded certicate of incorporation, containing all the
statements erjumerated in the statute, except the one in con
troversy, together with acts of user, at the place where the
works of the company were located, was sufcient to establish
the conclusion that the company was, at the date of the trans
actionwith Mooney, a corporation de facto, vested with the
power and right to the exercise of all the acts contemplated
under its franchise, so far as regards the relation between it
and the plaintiff, whose contract with it as such, estops him
to now deny its existence as such de_/'a.ct0 corporation. Eaton
v. Aspinwall, 19 N. Y. 121; Bufalo R. R. 0'0. v. Carey, 25

N. Y. 77, and cases cited, supra.
Since the validity of the corporation to make tho contract in
question is thus clearly established, it follows that the de
fendant, Humphrey, as a member of the corporation contracted
with, cannot be held liable as a partner, nor indeed does it fol
low as a rule of law, if. the legal existence of the corporation

could be attacked and overthrown collaterally or otherwise, that
the members of such de facto corporation would be liable as
members of a copartnership. The facts in a given case may

sometimes warrant a holding of partnership liability, as where
an already constituted partnership seeks to become incorpora

ted, and exercises corporate powers without color of right, or
where an associated company by deceit or misrepresentation,
fraudulently attempts to evade individualliability through a

false assumption of pretended corporate authority, or where in
respect to the transaction in controversy a corporation in fact
in-tended to assume partnership liability, and especially where
in consideration of such known or supposed intent the other
party was induced to act in entering into the contract.
.289
Humphrcys. etc., v. Mooney.
I am aware that there is considerable diversity of opinion in

the decided cases upon this point.
The ease of Fziller v. Rowe.
57 N. Y. 26, is an authority for the broad doctrine that par

ties assuming to act in a corporate capacity without a legal
organization as a corporate body, are liable as partners, with the
limitation only that the party so held liable must have been
a member of the company at the time the contract was made.
In the case of W/zqaple v. Parker, 29 Mich. 380, where a
company organized as a partnership in fact, and had been do
-ing business as such some time prior to the execution of arti
cles for a corporation, the court say: Certainly if they were
already a partnership before the attempt to form acorporation,
they would not by the failure of this attempt cease to be a
partnership, but the attempt iail ing, the partnership continued.
If the opinion thus expressed was decisive of the question
under consideration, and it seems to be intended as such, it
greatly weakens the force of what the court immediately add,
as follows: But suppose they were not apartnership and had
not acquired property or done business until these articles
were executed, if the articles failed to make them a corpora

tion, then I am inclined to think they would in legal effect, by
thus associating themselves together in the purchase of the
property for the purpose of carrying on the business, and in
carrying it on, become partners in that business.
It is to be remarked, however, that the suit in that case was
for the purpose of equitably settling the respective rights of
members of the company to property contributed to the gen

eral fund.
In the case of Abbott v. T/ze Omaha Smeliiny Company,

cited supra, which involved the question of the partnership
liability of Abbott as a member of a company which was held
not to have been a corporation eitlierdejure ordefacto, the
court upholds the instruction of the court below which sub
mitted the question of such partnership liability to the jury,
as a fact to be determined upon the evidence touching that

point.
19
290
SUPREME C-oum" OF COLORADO.

It is held in Tarbell v. Page at al. 24 Ill. 47, that the dis

solution of a. corporation does not change the relation of the
stockholders to the creditors of the company; that it does not
operate to convert them into mere partners; and that their
liability as stockholders is not changed beyond that imposed
by statute.
,
The case of Stowe v. Flagg at al. 72 Ill. 397, is very like

that of TV/zaipple v. Pearson, supra, involving the property
rights, inter sese, of parties who had associated in writing for a

manufacturing purpose, and had failed in an attempt to be
come a corporate body, and the court held that the property
involved had never been clianged into corporate property, but
that under the facts in the case, belonged to the parties as an

association under their united agreement.
In Ilubbawl an/Z Wtfe v. U/zappel, 14 Ind. 601, it is held,

that if the name in which the contract may have been made
simply prime facie, imply a corporation, while in fact the com
pany is not assuming to be a corporation, but only a partner

ship, this fact may be shown.
The case of Fay at al. v. Noble et al. 7 Cush. 189, is a
strong authority and directly in point, that a partnership lia
bility does not attach to the members of an irregularly organ
ized or illegally assumed corporation.
In the case at bar there is no charge of concealment, mis
representation or fraud on the part of the company nor any of
its members, nor the agent through whom the contract was
made. There is no evidence of intent on the part of the com

pany to assume a partnership liability, nor that the appellee
supposed there was any such assumption. He accepted the
obligation of the company as the engagement of a corporation
clothed with a statutory liability only. Treating with it as
such, he is presumed to have known the extent of that liabil
ity, and to have acted with reference thereto. The doctrine
of a partnership liability in such a case is not founded in law
or reason, and is repugnant to the very purposes of the statute
authorizing a corporation, one object of which is to limit in
__
1:-1
Dizcsmnaa TERM, 1880.

291
'
dividual liability. It cannot be, in the absence of all fraud

ulent intent, that such alegal result follows as to fasten on
parties involuntarily for such a cause, the enlarged liability of
copartners; a liability neither contemplated nor assented to by
them. The very statement oft he proposition carries with it
a suicient refutation. * * * Corporations are known and
recognized legal entities, with rights and powers clearly de
ned and well understood, and wholly distinct and different
from those of individuals and copartnerships. Persons who
subscribe for and take stock in them are subject to certain
xed and limited liabilities which they voluntarily assume,
and those liabilities are not to be enlarged so as to a'ect inno
cent parties beyond the letter of the law. A copartnership
cannot take upon itself the functions of a corporation, nor can
the latter or its members be made subject to the liabilities of
a copartnership in the absence of statutory provisions impos
ing such liabilities. The personal liability of a joint stock
company or copartnership is inconsistent with the character
and nature of a corporation, 01' which the law properly recog
nizes only the creature of the charter, and knows not the in
dividuals. Fay v. Noble, supra.
Looking into the statutes, to the provisions of which the
corporation in question was made subject. we find various en
actments by which oicers and members are made individually
liable for debts contracted by corporations in case of non
compliance with certain requirements, but no provision is
made by which such individual liability attaches by reason of
any omission to organize in the manner prescribed by the in
corporation law. The statute, it is true, prescribes the mode
of organization, and what the articles of incorporation or char
ter certicate shall contain, but annexes no penalty or liability
to the neglect or omission to strictly comply \vith it.
Corporations as a rule, and especially in this State, where

so very many are created under our general incorporation law
representing and controlling the largest share of the wealth

and industries of the State, and bearing either good or bad
292

fruit, according to the character and purpose of the body,
should be held to a strict accountability for their corporate

acts.
Many of these doubtless are liable to a decree of dis
solution and forfeiture of their franchise in a proceeding for

that purpose; while on the other hand, considering not alone
the mere legal rights of corporations, but that owing to the
peculiar nature of our mineral and other resources of wealth and
industry, that depend for their successful development upon
such aggregation of capital, intelligence and unity of action,
wherever a body of persons becomes lawfully incorporated or
makes a bona de attempt so to do, and by actual user and
honest intent, evinces the legitimate purpose of such organi

zation , no strained construction ought to be interposed against
affording acknowledged protection to the corporate rights of
stockholders who contribute their means to useful enterprises.

It is also objected against the validity of the Smelting
Company that its corporators and ofcers were non-residents
of this State; that the subscription and acknowledgment of
the articles of incorporation were made, and meetings of the
officers were held at a place without the State. These objec
tions, we think, are not well founded.
There is nothing in
the statutes requiring corporators and officers, any more than

stockholders, to be residents of the State granting the charter.
and, indeed, it would be a rather strange law if there were
such an one. But even such a provision would, in the case of
a (la facto corporation, be met by the authority of the Supreme
Court of Pennsylvania in the Delaware cf: Iludson Canal
C0. v. The Penn. Coal Co. 21 Pa. St. 131, 1-16, where it is
held, that conceding that the president and managers ot' the
Pennsylvania Coal Co. at the time of entering into the con
tract were resident citizens of New York, and not residents or
citizens of Pennsylvania, and that they were therefore ineligi
ble, it does not follow that the agreement is not binding on the
defendant. The officers may have been ineligible, but this

cannot be taken advantage of in this collateral proceeding. It
is suicient for the plaintiff and all third persons that they
have dealt in good faith with the oicers da_/'acto._
293
The subscription and acknowledgment of the articles of in

corporation, properly authenticated, may, we think, be made
without as well as within the State.
The corporation submits
itself to the laws of Colorado when it assumes to incorporate
and act thereunder in substantial compliance with the statute.

Our statute does not in terms require the certicate of in
corporation to be executed within the limits of the State, nor
does it in terms require a meeting of the corporators prior to
the execution of the certicate.
The essential pre-requisites to the formation of a corporation

are a certicate in form and substance as prescribed by statute;
that it be sigiied by the corporators; that it be acknowledged

before some oicer competent to take acknowled,-_;ments of
deeds, and that it be led in the oice of the Secretary of State,
and a copy in the office of the recorder of deeds of the county
in which the principal business is to be carried on. The chap
ter on conveyances provides the manner in which, and the
ofcers before whom conveyances and contracts affecting title
to real property may be acknowledged without the State, as
well as within the State. The execution of a certicate of in
corporation under the statute, is analogous to the execution of
a deed of conveyance, and neither instrument is of any validity

without a delivery.
It is the ling of the certicate that brings the corporation
into existence. This instrument may contain all that the stat
ute reqnires, its execution may be wholly regular, but the per
formance of these acts does not constitute a corporation. The
mere certicate, like an undelivered deed, is without validity

or forceit may be retained by one of the makers, or it may
be destroyedbut when led as the law requires, and recorded
in the ofce of the Secretary of State, the statute declares that
a copy thereof, duly certied by the Secretary of State, under
the great seal of the State of Colorado, shall be evidence of the
existence of such company.

As respects the holding of meetings of directors beyond the
limits of the State, section 18 of the Corporation Act provides
204

that such meetings may be lawfully held, provided such provis

ion is made in the certicate of incorporation.
Upon examining the copy of the certicate set out in the
record, it is found to contain in its statement of the places
where the business and operations of the company are to be
carried on, the following provisions : Sia:thThe operations
of our said company shall be carried on at or near Golden City,

Jelferson county, State of Colorado, where the principal otce
shall be kept, with the privilege of a branch oice in the city
of Trenton, State of New Jersey, for the holding of meetings

of stockholders and directors, and for the transaction of such
business as the best interests of the company may require.

Meetings, therefore, of the directors were regular without the
State.
Section 6 of the corporation law provides for the election of
the directors annually by the stockholders, at such time and
place as shall be directed by the by-laws of the company.
Gonceding that meetings of the stockholders without the

State, although so directed by the by-laws of this company,
are not within the saving clause of the 18th section of the stat
ute referred to, and were therefore irregular or illegal, such
act, while a violation of the statute, being such, not by express
inhibition, but by construction of its contemplated meaning

and upon principle, comes within the rule already laid down
respecting irregular organization,that it cannot be taken ad~
vantage of in a collateral proceeding by either the corporation
or one contracting with it as such.
It is also td be observed that the persons who are named by
the corporators in the certicate as directors of the company

for the rst year, are created such directors by operation of
law, and not by election of the stockholders after the corpora
tion is formed, and hence it might be possible for the corpora

tion to begin and go on in business for a year without any
meeting of the stockholders, such directors, under the provi
sions of sections 5, 6, 7 and 8, being empowered to choose the
president and other oicers, adopt by-laws, and manage the
affairs of such company for the rst year of its existence.
___
l)1:e1~;M1s1-JR '1!-mar, 1880.
295
Derry v. Ross et al.
' The omission to record a duplicate of the certicate in the

county where operations of the comp my were carried on, is
met by the case of the Jllokeluznne II. M. O0. v. Woodbu1'y,

14 Cal. 426, and also by the case of Tarbell v. Page, 24 Ill.
46, which is still stronger, there being in that case no certicate
led with the Secretary of State, and the court say:
"' \Vhilst it may be true that a failure to le this certicate
in the Secretary of States ofce may be such a non-compliance
with the law as would authorize the People to sustain a writ
of guo warranto or scire faciae, and to oust the corporators

from the exercise of their franchises, it does not necessarily
follow that it is not, as to third persons, a corporation.

The judgment in favor of appellee rendered by the court be
low is for these reasons erroneous, and must be reversed.
Judgment reversed.
-~
DERBY V. Ross ET AL.

1. Courts of equity will assume jurisdiction of causes for the purpose of re
straining acts of trespass to mining property and water rights, where the
character and extent of the wrongful acts committed renders the injury irre
mediablc, or where an action at law, by reason of the insolvency of the du
fendant, would not abrd an adequate remedy.
2. If the subject-matter of litigation be outside the pale of equity jurisdic
tion, and cannot possibly be brought within it, the objection to the jurisdic
tion may be taken at any time; but in all other cases, if the party submit to
the jurisdiction without objection until the decree is entered, he thereby
waives the objection and cannot raise it in the appellate court.
3. Filing an amended answer is a waiver of error that might have been
committed by the court in sustaining exceptions to the original answer, the
same matter being set up and relied upon in defense at the hearing.
4. Abandonment is n. matter of intention, and operates instantcr. Whore
a miner gives up his claim and goes away without any intention of re
possessing it. an abandonment takes place, and it is open to location by tha

n-it comer. No subsequent sale by the former locat/or, after other rights
have intervened, will convey any right or tit.e.
SUPREME CourT OF CoLoRADo.
296
Appeal from District Court of Lake County.

Messrs. MILLER & CLough and Mr. A. S. WESTON, for appel

lants.
Mr. Thomas MACON, and Messrs. MARKHAM, PATTERsoN,

THOMAS & CAMPBELL, for appellees.
BECK, J.
A bill was filed in the District Court of Lake
County by the appellees, on the 12th day of August, 1876,

setting up that they were in possession of a certain placer
mine and ditch in Willow gulch in that county, which they
had taken possession of and appropriated as abandoned prop
erty. That the mine was originally located, and the ditch con
structed, by Wesley Willett, James Willett and Samuel Ham
mett, in the year 1866, and that these parties had left and
abandoned the property in 1872, and allowed it to become in a
ruinous condition; that the complainants, finding the prem

ises abandoned, had entered into possession, re-located the prop
erty, filed their location certificate in the recorder's office of
Lake county, put the property in repair, and commenced min
ing operations; that they continued to work the mine in a
profitable manner, using the water flowing through the ditch
for the purpose, until defendant Derry cut the ditch and
diverted the water, so as to compel them to suspend mining
operations. Complainants entered into possession in August,
1875, and filed their location certificate for record on the 26th
day of October following. The allegation in the bill as

transcribed into the record is, that they took possession in
August, 1876; but other portions of the bill and record,

including the answer, show that the true date is August, 1875.
The bill alleges that the appellant, Derry, made no use of the
water of the ditch, but wantomly and maliciously, at different
times, cut the ditch and allowed the water to flow out and run
to waste. That he first cut the ditch on June first, 1876, and
297
had since repeatedly cut and broken it, and threatened to con
tinue these wrongful acts. It alleged the damages to be irrep

arable, and the defendant insolvent. The prayer was for a
temporary injunction restraining the defendant from the acts
complained of, and that upon a final hearing the injunction be
made perpetual.
The temporary writ was granted, and one year afterwards,
August 15th, 1877, the appellant filed a demurrer to the bill,
and at the same time a motion to dissolve the injunction.
The bill was amended, and thereupon appellant filed an an
swer, setting up title in himself to the ditch and water. Ex
ceptions being made and sustained to the answer, he filed an
amended answer, denying the complainants title to ditch and
water, and claiming title in himself by prior appropriation of
the water and by purchase of the ditch from Wesley Willett,
one of the original locators. To the answer a replication was
filed, and the cause was then referred to a master in chancery
to take testimony. Upon filing of the master's report of tes

timony, the parties went into a final hearing of the cause upon
the merits before the court. The court found the allegations
of the bill to be true; that complainants were the owners of
the property, and a decree was entered up in their favor per
petually effjoining the appellee from interfering with the ditch.
The principal errors assigned are: that the court did not have
jurisdiction to try the cause and pronounce the decree, and
that the decree was not warranted by the testimony.
We have no hesitation in saying that the allegations of the
bill justified the issuing of the temporary writ of injunc
tion.
It is a common practice for courts of equity to assume juris

diction of a cause of this nature, for the purpose of restrain
ing acts of trespass to mining property and water rights,
where the character and extent of the wrongful acts committed
renders the injury irremediable, or where an action at law

would not afford an adequate remedy, by reason of the insolv
ency of the defendant.
2 Story's Eq. Jur. sections 92S, 929;
293

Irwin v. Davidson, 3 Irelells P1 . Cases, 311; United States

v. Parrott, 1 McAllister C. C. 271; Ate/zison v. Peterson, 20
II"-4
\Vall. 515.
It is urged that the court below sitting as a court of equity,
had no jurisdiction to try the question of title, which was the

main issue presented by the pleadings.
'
It is undoubtedly true that the ownership of the ditch and
water was a question of legal right; when this issue was pre
sented, the court might very properly have refused to proceed
further until that issue should have been determined in an
action at law. N0 objection however appears to have been
raised to the jurisdiction, and both parties voluntarily submit
ted to a trial of this issue before the court. Can the question
of jurisdiction be now raised, for the rst time, upon this
appeal?
The legal maxim that consent cannot confer urisdiction, is

mainly applicable to courts of special and limited powers.
The jurisdiction of such courts cannot be extended by consent
beyond the limit of the powers granted. Consent of parties
would not authorize a justice of the peace to issue a writ of
injunction, or to try and sentence a prisoner for the crime of
arson or murder.
_
Mr. Sedgwick, in his work upon the Construction of Stat

utory and Constitutional Law, p. 359, illustrates the pIOpuSl
tion in this wise: Thus, where an appeal is taken in a cause
not appealable, or to a court not having jurisdiction, it is not
in the power of the parties to confer jurisdiction by waiving
all objections.
The maxim" applies with equal force to a court of equity.
where
subject-matter
of the
is wholly outside
pale ofthe
equity
jurisdiction,
andlitigation
cannot belbrought
withinthe
it
either incidently, or by the advent of circumstances. It is the
province of courts of equity to take cognizance of matters of
account, trust, fraud, accident and mistake. They have con
current jurisdiction with courts of law, where the latter courts,
although courts of general jurisdiction, cannot give adequate
"
-sq
299
relief, or, under the actual circumstances of the ease, can give
no relief at all. And, according to the classication of Mr

Story, and some other authors of works upon equity jurispru
dence, they have also auxiliary or supplemental jurisdiction.
As remarked in the case of Miller v. Furse, Baileys Ch. R.
181, with very few exceptions, there is no question of civil
rights in matters of property that may not come within the
jurisdiction of a court of equity.
Criminal matters however are wholly outside of equity
powers, and no consent would confer on such court jurisdiction

to try and punish persons for criminal olfenses. Here is a
palpable defect of jurisdiction incapable of being cured, and
if asserted, would be usurpation, and the proceeding a nullity.
It is not the province of a court of equity to try causes

where the relief prayed for is an award of damages, which can
only be properly ascertained by the verdict of a jury; nor is it
the province of such court to try legal titles. When there
fore such issues arise inpthe progress of a cause, if the court
does not of its own motion remit the parties to an action at
law, it is the privilege of the parties litigant to object to fur
ther proceedings in equity, until the legal issues are deter
mined before a proper tribunal. 1 Storys Eq. Jur. 72; 2
Storys Eq. Jur. 925d; Uarlisle v. Cooper, 6 C. E. Greene,
576; Gilberts History and Practice of the Court of Chancery,
p. 51.
If the subject-matter of litigation be outside the pale of
equity jurisdiction, and cannot possibly be brought within it,
the objection to thejurisdiction can be taken at any time, but the

rule is, in respect to all other eases, that ifa party submit to the
jurisdiction, without objection, until the decree is entered, he

has waived the question of jurisdiction, and cannot raise it in
the appellate court.
l[cD0nald v. Uroclcett, 2 McCord Ch.
135; Ludlow v. Simond, 2 Caines Cases. p. 37; Burroug/as v.

M0Neill, 2 Devereux & Bat. Eq. 297; Leroy v. Platt, 4 Paige,
Ch. 77; Miller v. Fume, Baileys Ch. 181.
In the case at bar the subject-matter of the litigation was
300

within the jurisdiction of the court. Upon the face of the bill
the court might properly have entered a decree, perpetually
enjoining the defendant from committing the acts complained
of, and until the filing of the answer, no purely legal issue
arose. By submitting that issue to the court the appellant
has waived the question of jurisdiction, and cannot now raise
it. And since there was no palpable defect of jurisdiction,
the error, if any, is cured.
In respect to the ruling of the court in sustaining the excep

tions to the original answer of the defendant, we fail to see
that defendant was deprived of any substantial right by this
ruling. The same matters of defense were set up by him in
an amended answer, and relied upon in the trial. And if any
error was committed by the court in sustaining the exceptions,
the defendant has waived it by pleading over.
Considering the case upon the merits, we are called upon to
decide whether the decree is warranted by the evidence pro
duced before the court. This presents the question of the
abandonment of the mining claim and ditch, by the original
proprietors. Willett and his co-tenants were the original appro
priators of the placer mine and water rights. They con
structed the ditch, and were in the actual occupancy of the
property from 1870 or 1871 up to the latter part of 1872.
During this time they were vested with certain possessory
rights, which as against all other claimants except the govern
ment, amounted to title. This title was good and sufficient, so
long as they remained in possession, and complied with federal,
State and local laws and regulations. But these are rights
which may be divested either by sale, gift or abandonment.
No sale or gift was made until long after the appropriation of
the property by the appellees. It therefore only remains to
enquire if the property was abandoned prior to such appropria
-
tion.
Abandon ment is a matter of intention, and operates instan

ter. Where a miner gives up his claim and goes away from it
without any intention of re-possessing it, and regardless of what
301
may become of it or who may appropriate it, an abandonment

takes place, and the property reverts to its original status as
part of the unoccupied public domain. It is then publici juris,
and open to location by the first comer. No subsequent sale
by the former locator in such case, after other rights have in
tervened, will convey any right or title to the grantee, for his
rights being wholly divested by the abandonment, he has
none to convey. Richardson v. McNulty, 24 Cal. 339; Davis
v. Butler, 6 Cal. 510.
The evidence shows that neither Wesley Willett, James
Willett nor Samuel Hammett, occupied the property since 1872,
nor is there any competent testimony showing that they ever
authorized any one to look after the property for them, or to
exercise any control over it. All that appears in the testi
mony about Stone, of Granite acting for them, is hearsay.
Stone was not a witness in the cause, and it appears that he
was even ignorant of the residence of Willett, as he was unable
to furnish the appellant his address when he desired to pur

chase the ditch.
The possession of Watt and McKay cannot be said to be the
possession of Willett. They were not lessees, but appear to

have worked on their own account, and for their own profit
during their occupancy of the premises. They likewise aban
doned it prior to the entry of the appellees in August, 1875.
Appellant subsequently ascertained the address of Wesley
Willett, who was in the State of Texas, and procured from him
a deed of the ditch.
In our view of the case, this deed is of
no effect whatever.
At the time of its execution Willett had
no interest to convey.
In regard to the claim of the appellant, that he made a
prior appropriation of the water, we have to say that in our

judgment, the acts relied upon by him are not sufficient to
constitute an appropriation of the water right in controversy.
Finding no substantial error in the record, the decree will
be affirmed.
Decree affirmed.
I102

Gordon et a1. v. Damell.
GORDON ET AL. v. DARNELL.

The execution and delivery of a bond conditioned to convey a mining claim
upon payment or deposit of a certain sum within a given time, the bond not
being signed by the obligee, containing no clause granting him possession
during the option, and having no consideration expressed for the option given:
Held, that until acceptance by the obligee, or the performance of some act
equivalent to an election to purchase under the terms prescribed, such a bond
is a nudum pactmn, and subject to revocation; also, that the taking posses
sion under such a. bond, and making improvements without objection from
the obligor, would not render the bond irrevocable; nor could such entry be
considered equivalent to an election to purchase, nor be construed into a per
formance.
Appeal from District Court qf Custer Oozmty.

Tna facts are stated in the opinion.
Mr. Gsoaon S. ADAMS and Mr. J. VV. WARNER, for appel

lants.
Messrs. BLACKBURN & DALE, for appellee.

Bncx, J. The plaintiffs below, appellants here, were orig
inal locators of the Good Neighbor mining claim, at Silver
Cliff. On the 23d day of August, 1879, they executed and
delivered to one John \V. Lawrence, a bond in the penal sum
of one thousand dollars, conditioned to convey the claim to

him on payment to them, or upon the deposit by Lawrence in
the Custer County Bank, in Silver Cliff, on or before the 23d
day of October, 1879, the sum of four hundred and fty dollars.
The bond was not signed by Lawrence contains no clause

granting him the possession during the option, and no consid
eration is expressed for the option given.
Lawrence went upon the claim about the 2d of September,
built an ore-house and commenced to sink shafts thereon. On
the 9th of September he executed a title bond to the defend
ants, Darnell and Ho(lson.
This instrument was conditioned
303
Gordon et al. v. Damell.
to execute to them a. deed upon payment on or before Decem

ber 8, 1879, of the sum of $25,000. Lawrence thereupon
admitted Darnell to enter upon the claim and occupy it jointly
with himself.
On the 12th day of September, two of the plaintiffs, Heister

and Gordon, entered and commenced digging, when Lawrence
and Darnell objected, and expelled them from the ground,
Darnell claiming under his bond from Lawrence, and Lawrence
claiming under his bond from the plaintiffs.
"
This suit against Darnell and Ilodson was instituted the
next day, September 13th. Hodson was not served with
process, and Darnell only appeared to the action.
The cause was tried at the October term of the District Court
of Custer County, before the court and a nry, the trial result
ing in a verdict for the defendant. Darnell.
The plaintis bring the cause here by appeal, assigning for
error, inter alia, certain rulings of thejudge in admitting and
rejecting testimony, the granting and refusing of instructions,

and the denying of plainti"s motion for a new trial.
We will observe in the rst instance, that we are precluded
from reviewing the judgment upon the evidence, by a familiar
and oft repeated rule of this court. The bill of exceptions
does not purport to contain all the evidence. Hence, we can
not inquire whether the verdict of the jury is supported by the
evidence or not.
Some important questions however arise upon the record
respecting the rulings of the court upon the trial, which we
will examine.
The districtndge appears to have taken an erroneous view of
the legal effect of the title bond executed by the plaintiffs to
Lawrence, and this evidently led him into the commission of
sundry erroneous rulings during theprogressof the trial.

A bond of this nature is. in the rst instance, a mere option
to the obligee, to purchase at any time within the period there
in limited, upon simple compliance with the terms stated.
Until such acceptance by the obligce, there being neither mut
30-1
SUPREME Counr or COLORADO

Gordon et al. v. Darnell.
uality nor consideration, it imposes no obligation whatever on

either party, and for that reason is subject to revocation by
the maker at any time prior to acceptance. Such a bond lacks
the elements of a valid and binding contract. It is not
signed by the purchaser, and no consideration is expressed for
the option given. Not being enforceable to any degree
against the purchaser, he is equally incapable of enforcing it
against the seller, for contracts to be obligatory upon either

party must be mutual.
Until acceptance by the obligee, or
the performance of some act eplivalent to an election to pur
chase under the terms mentioned therein, it is a ngulum, pac

tum. Its legal effect is that of a continuing offer to sell,
which is capable of being converted into a valid contract by a
tender of the purchase-money, or performance of its conditions,
whatever they may be, within the time stated, and before the
seller withdraws the offer to sell. But if the offer be with
drawn before such election and tender of performance, it ceases

to have any legal force whatever.
Where a money consideration for the option is expressed, or
where the bond to convey requires the purchaser to improve
and develop the property as a consideration of the option, or
in part performance of the conditions of sale, and these terms
have been duly complied with, a totally dilfrent case is pre

sented from that where, by the terms
instrument, nothing is to be paid and
on the part of the purchaser until he
purchase. The former case contains
and conditions ot the

nothing done under it
makes his election to
all the elements of a
binding contract, and the purchaser, although free to reject the

offer of sale, may elect to accept within the time limited. In
the latter case the offer must not only be accepted within the
time mentioned, but before the option is withdrawn. Such
acceptance, together with a tender of performance, renders the
remedy mutual, and entitles the purchaser to aspecic per

formance. The minds of the contracting parties are said to
meet on the happening of these events, and the offer to sell
ripens into a valid contract, just as it would if made and con

.
,____
ii
_77
-_
305
cluded at the time of acceptance. The B. and M. R. R. v.

Bartlett, 3 Cush. 224; Corson v. Mulvany, 49 Pa. St. 88; Per
kins v. Hadsel, 50 Ill. 216; Esmay v. Gorton, 18 Ill. 483;
Estes v. Furlong, 59 Ill. 300; Vassant v. Edwards, 43 Cal.
458; Stevenson v. McLean (Queen's Bench), 11 C. L. J. 229;
Rutledge v. Grant, 4 Bing. 653; Cook v. Oxley, 3 T. R. 653;
Eliam v. Henshaw, 4 Wheaton, 226; Carr v. Duval, 14 Pet.
76; Fry on Specific Perf. Secs. 64, 166, 167, 177179.
Upon the trial plaintiffs offered to introduce in evidence
what purported to be a notice which had been served upon
Lawrence, rescinding the contract. The defendants' counsel
admitted that the notice was served on the defendants upon
the day this action was instituted, but objected to the intro
duction in evidence of the notice, and the court sustained the
objection. The notice not having been incorporated into the

record, we are not informed of its contents, and can, therefore,
only say that testinhony of this character was pertinent to the

issue before the jury. It is not pretended that a tender or
deposit of the purchase-money was made until three days
afterwards, and whether there had previously been such part
performance as to render the bond irrevocable was a question
of fact, which was being tried.
When Lawrence was upon the stand as a witness for the
defendant, plaintiffs counsel asked him the question, Did
you, or did you not, previous to making the deposit men
tioned, receive notice from plaintiffs, or any of them, that they
had rescinded the contract, and that you need not deposit the
money to their credit !
This question was likewise objected to, and the objection sus
tained. This was clearly error, for the reasons above men
tioned. As before observed, the judge evidently placed an er
roneous construction on the bond itself, treating it as irrevo
cable.
Counsel for appellees attempt to sustain these rulings, and

likewise certain instructions given to the jury, on the ground
that Lawrence had entered under the bond and made valuable
20
306
SUPREME Cooar or COLORADO.

Gordon et a.l. v. Damell.
improvements; that Darnell, the defendant, was his assignee,
whom he had let into joint possession with him, and that
Lawrence having deposited the purchase-money, as stipulated
in the bond, within the time therein given, he was equitably

entitled to a specic performance of the covenant to convey;
and that if the possession of Lawrence was rightful, that of
his grantee, Darnell, was equally so.
This position assumes certain facts to exist which were in
dispute. The bond did not in terms require or authorize Law
rence to take possession. It did not require or authorize any
shafts to be sunk or improvements to be made pending the
option, and the plaintiffs offered to introduce testimony tend
ing to show that they never authorized Lawrence or his grantee
to enter into possession.
The plaintiff, Heister, was asked when upon the stand,
What permission,-if any, did you give Lawrence and Dar
nell, or either of them, to work on the claim?
Gordon, another plaintiff, was asked, Did you ever part with
your possession, or authorize any one to take possession of the
Good Neighbor lode?
And to plaintiff Moorehead this
question was propounded, State whether or not you have

ever given permission to defendants, or any other persons, to
have possession of the Good Neighbor claim? Objections

were made and sustained to all of these questions, the effect of
which ruling was to exclude from the jury such testimony as
the plaintiffs may have been prepared to give, upon their re
spective oaths, concerning the manner in which, and the cir
cumstances under which possession was given or obtained of
the mine. This was error.
,
Counsel for defendants say in their brief, that it is not
pretended that Lawrence went into possession of the Good
Neighbor with the express permission of the plaintiffs, only
that he went into such possession at or about the time of the

purchase, with the knowledge of and without objection from
the plaintiffs; expended money in developing the claim, and

made valuable improvements upon it with their knowledge
307
and without any objection from them, and that they stood by
and allowed this to be done, and allowed Darnell to make a
contract of purchase from Lawrence, and be taken into joint

possession of the premises, without objection and without
notifying Darnell that Lawrences possession was wrongful.
If these facts be admitted, they do not render the bond irrev
ocable, unless it can be said that they amount to an election
to purchase, and are in compliance with the terms of the con
tract. It cannot be said that an entry of this character, un
authorized by the bond, and without the express assent of the
plaintiffs, is such an entry as is equivalent in law to a sealing

of the bond by Lawrence. Nor .can it be considered equiva
lent to an election to purchase the mine, so far as the written
contract is concerned, for that prescribes a different mode of
electing, viz., the payment or deposit of the purchase-money;

and it is equally ditlicult to comprehend how taking posses
sion and making improvements can be construed as perform
ance in this case, at least under the written obligation in evi
dence, since none of its provisions contemplate such acts.
Certainly, if Lawrence, without further agreement with the
plaintiffs, and of his own motion, went upon the premises and
built an ore-house for his own convenience, and sunk shafts
for the purpose of testing the value of the mine, in order to

determine whether he would elect to purchase it on the terms
offered, these facts would constitute neither election nor per
formance. Such acts would be simply for exploration and not

designed to improve the property. The character of the acts
being in dispute, which were relied upon as making the con
tract binding on the plaintiffs. it was error to exclude the tes
timony which the plaintitfs had to offer on that subject. The
acts themselves being unauthorized by the bond, the plaintiffs
should have been permitted to testify whether or not they

were merely voluntary on the part of Lawrence and Darnell.
Similar errors appear in the third and fourth instructions
given to the jury.
'
The third instruction informs the jury in substance, that if
308

the plaintiffs executed the bond, and if Lawrence took pos

session and spent money on the claim with the knowledge and
without objection of plaintiffs, and by an arrangement with Dar
nell let him into joint occupancy with him; if they were in
actual possession at the time suit was brought, and if Law

rence had deposited the purchase-money since the institution
of the suit, and on or before the 23d day of October, 1879,
and notified the plaintiffs, then Darnell was entitled to hold
the claim against the plaintiffs.
This instruction is faulty. It assumes to cover the whole
case, but is not broad enough. No opportunity is afforded the
jury to find, if the facts warranted, that the option to purchase
was withdrawn before the bond became a binding obligation
on the plaintiffs.
To make this instruction announce fully the law of the case,
a proviso would have to be added, to the effect that if the
evidence disclosed that the taking possession and expending
money were purely voluntary acts on the part of Lawrence, not
being in compliance with the terms and conditions of any
agreement between him and the plaintiffs concerning the sale
of said mine; and if the evidence further disclosed that the op
tion to purchase was withdrawn by the plaintiffs, and Law
rence notified by them of the fact prior to the deposit, then in
that case the verdict should be for the plaintiffs.
The same objections and the same observations apply to the

fourth instruction given.
For the errors indicated, the judgment of the court below is
reversed and the cause remanded.
Judgment reversed.
-:
309
Pollard v. Shively et al.
PoLLARD v.
SHIVELY
ET AL.
1. A recorded certificate of location is a statutory writing affecting realty,

being in part the basis of the miner's right of exclusive possession and en
joyment of his mining location, granted by the act of Congress of May 10,
1872. The purpose of description is to identify the claim with reasonable
certainty.
2. The courses and distances of a survey must yield to its monuments,

whether natural or artificial.
3. While a stump, hewed and marked, might be adopted as a location

post, the descriptive survey should give both its real and assigned character.
When the call in a location certificate is for a post, parol testimony is in
admissible to show that while a post is called for, a stump, was in fact
established as a corner.
4. The general rule that parol evidence cannot be admitted to contradict

or control the language of a deed, but that latent ambiguities may be ex
plained by such evidence, held, applicable to a location certificate.
5. The rule is that where monuments are relied upon to control courses
and distances, they must be found as called for.
6. Marking the boundaries of a surface claim as required by the statute,
serves a double purpose: it operates to determine the rights of the claimant
as between himself and the Government, and to notify third persons of his
rights.
7. Where a variation exists between the monuments and the courses and
distances of the location certificate, it is necessary, prior to the patent, for
the locator, as against subsequent locators, to keep up his monuments to an
extent that gives fair and reasonable notice.
8. The requirements of the statute that the side posts be placed in the
center of the side lines is satisfied if they be placed substantially in the center.
9. The marking of the surface boundaries with posts is so far imperative
under the statute as to require that the boundaries may be readily traced by
them. The notice which the statute contemplates and seeks by and
through them, may not be substantially impaired by any omission.
Appeal from District Court of Clear Creek County.

Mr. L. H. SHEPHARD and Messrs. RocKwKLL and BISSELL, for
appellant.
310

Mr. R. S. MoRRIsoN and Mr. JACOB FILLIUs, for appellees.

ELBERT, C. J. This was an action brought by the appellees,
Peter and David Shively, against the appellant, Pollard, in the
District Court of Clear Creek County, to recover possession of a
certain portion of the Glendower Lode, claimed by the appel
lant as a part of the Hardin Lode, and embraced by him in his
application for a patent therefor.
The Hardin Lode was discovered in June, 1875, and in the
November following was surveyed and staked, and a certificate

of location filed in the office of the register of deeds for Clear
Creek county by the discoverers, Packard and Krise, remote
grantors of appellant.
The Glendower Lode was discovered the 6th December,
1878, was surveyed and staked the 20th February, 1879, and a
certificate of location filed the 21st February, 1879.
On the 26th of August, 1879, Pollard, who had become the
owner by purchase of the Hardin Lode, filed a certificate of re
location thereof, for the purpose, in the words of the certificate,
of more definitely defining the boundaries as originally staked
out and filed, without waiver of any right acquired by virtue of
said original location.
The discovery shaft of the Hardin was situated six hundred
feet from the east end, and nine hundred feet from the west
end of the survey. Both the original location and the reloca
tion varied from a regular parallelogram, from the discovery
shaft west, each diverging at a slight angle to the north. By
the courses and distances of the original location certificate, the
Hardin location did not interfere with or embrace any portion

of the Glendower. By the courses and distances of the relo
cation, the west end of the Hardin was swung further to the
north and overlapped a portion of the Glendower. The por
tion so overlapped constitutes the ground in controversy.
At the trial below the defendant based his case upon the
assumption that there was a misdescription in the original
certificate of location; that the courses and distances therein
were erroneous; that they did not describe the ground actually
311
312
SUPREME Comrr OF COLORADO.

surveyed and staked, and sought to control the courses and

distances by monuments, which he claimed were established
at the time of the survey, and which brought the ground in
controversy within the Hardin location.
The verdict was for the plaintiff, and the defendant appeals.
The controversy here concerns chiey two instructions
given by the court, as follows :
No. 1. The court instructs the jury that the defendant
under his location certicate and the other evidence in this
case, cannot claim any ground except that which is described
in the original Hardin location certicate, and that none of
the ground covered by the original location certicate is sued
for in this case.
N0. 2. The court instructs the ury that unless they nd

that the locators of the Hardin lode marked the surface boun
daries of their claim by six substantial posts, hewed or marked
on the sides in towards the claim, and sunk in the ground, to
wit:-one at each corner and one at the center of each side
line, the location wife void as against any bona de locator of
the same ground, or any part thereof, who has complied with
the law as to discovery and location of a mining claim, and
that placing stakes upon the side lines of the claim opposite
the discovery shaft, where the discovery shaft is 600 feet west
of the east end line, and 900 feet east of the west end line, is
not a substantial compliance with the law.
The rst instruction, it is insisted, infringes the rule that
monuments control courses and distances.
A recorded certicate of location is a statutory writing

affecting realty, being in part the basis of the miners right
of exclusive possession and enjoyment of his mining loca
tion granted by the act ot' Congress of May 10, 1872.
The purpose of the description in a certicate of location,
as stated by the statute, is to identify the claim with reason
able certainty. Identication of the subject-matter is like
wise the purpose of all description in patents, grants, and
other conveyances of real estate. The description in each
being for like purpose, should be governed by like rules.
313
That the courses and distances of a survey must yield to its

monuments, whether natural or artificial, is a familiar doc
trine. 3 Wash. R. P. *621, and cases there cited.
Negligence in making surveys; imperfect instruments;

variations of the needle; roughness and unevenness of the
ground are some of the elements of uncertainty affecting
courses and distances, and make obvious the propriety of the

rule.
Ibid.
It is only saying that, that which is more obvious and cer

tain shall control that which is less so. Clark v. Wethey, 19
Wend. 320. Hence, generally, in descriptions of boundaries
in degree of certainty, natural objects rank artificial marks, as
artificial marks in turn rank the courses and distances given
in a deed.
3 Wash. R. P., *631.
The difficulty in the case at bar is not about the rule, but
its application.
It will be borne in mind that the conflict between the two
lodes is at the west end of the Hardin, and that the monu
ments there are those chiefly contested.

The evidence touching the original survey and its bounda
ries is conflicting. The testimony of the plaintiffs witnesses,
among whom was the surveyor who made the survey, tends to
show that the courses and distances given in the original loca
tion certificate were correct; and although the corner posts at
the west end had disappeared, that they were actually placed
at or near the points where the courses and distances would
locate them. The east end corner posts, and what were in
tended as the center posts, although not properly placed, were
*
all found and identified by the surveyor, and corresponded

with the courses and distances given for the east end.
No original monument was found at the northwest corner.
Evidence was introduced by the defendant to show that a stake

was originally placed at this corner, but the evidences also
shew that it was not in existence at the time of the Glendower
discovery or location, and consequently could not avail to con

trol the courses and distances of the record, for reasons fully
stated hereafter.
314

v
The monuments upon which the defendant relied to control
the courses and distances of the original survey, was a stump

standing at the southwest corner of the relocation, and claimed
by him to be the soutllwest corner of the original location.

The certicate called for a post at this corner, but the de
fendant was allowed to introduce evidence to show that in
point of fact a post was never placed at this corner, but that
this stump, standing in the right place, was adopted as a sub

stitute for a post, and marked accordingly.
The act of Congress of July 26. 1866 (14 Statutes at large,

251), is silent as to how a mining claim shall be marked or des
ignated on the ground.
The act of May 10, 1872, Revised Statute, Sec. 2,324, pro
vides that the location must be distinctly marked on the
ground, so that its boundaries can be readily traced.
All
records of mining claims hereafter made shall contain the

name or names of locators, date of lo_cation, and such a de
scription of the claim or claims located by reference to some

natural object or permanent monument as will identify the
claiml
The legislature in 1874 passed a law supplementing the act
of Congress, and prescribing more specically how a mining
claim shall be marked (Genl Laws, 629).
.
Section six is as follows :
Such surface boundaries shall be marked by six substan
tial posts, hewed or marked on the side or sides which are in
towards the claim, and sunk in the ground, to wit, one at each
corne_r, and pne at the center of each side line.

_
Where it is practicably impossible, on account of bed-rock,
to sink such posts, they may be placed in a pile of stones; and
where, in making the surface boundaries of a claim, any one
or more of such posts shall fall by right upon precipitous
ground, where the proper placing of it is impracticable or
dangerous to life or limb, it shall be legal and valid to place
any such posts at the nearest practicable point strictly marked
to designate the proper place.
1.-- .74
~
~i
Dncmrnsn TERM, 1880.
315
Pollard v. Shively ct al.
Such statutory monuments substantially complying with the

requirements of the law, would control courses and distances,
so that where there was a variation between the courses and
distances given in the certicate of location and the monu
ments on the ground, the latter would prevail.

If in the survey of a mining location, a stump of suicient
size and stability stands at a point where a statutory post
should be located, I see no good reason why it should not be

hewed, marked and adopted as a location post. In such case
however, the descriptive survey should give both its real and
assigned character; otherwise it would not satisfy the call of
the location certicate.
Where there was no variation between the monuments and
the courses and distances, the failure to so designate it would
perhaps be unimportant; but in case of variation it would be
of prime importance.
In this case the call is for a post at the southwest corner, and
it is insisted that parol evidence is admissible to show that while

a post is called for, a stump was in fact established as acorner.
Courts have gone far in the admission of parol evidence in
the matter of uncertain and disputed boundaries, but I am un
able to see how this" demand of the defendant can be sustained
on principle. The certicate, like a deed, must be construed

ea: visceribus suis. When the intent is clearly expressed, no
evidence of extraneous facts or circumstances can be received
to alter it. 3 Wash. R. P. 400, 404; Bagley v. J1/[01-nill, 46
Vt. 99.
The general rule stated more fully is, that parol evidence
cannot be admitted to control or contradict the language of a
deed, but latent ambiguities can be explained by such evidence.
Facts existing at the time of the conveyance, and prior thereto,
may be proved by parol evidence, with a view of establishing a
particular line as being the one contemplated by the parties
when, by the terms of t/ze deed such line is left uncertain.
3 Wash. R. P. 401; Drew v. Swift, 46 N. Y. 209; Claremont
v. Carlton, 2 N. H. 369; Peaslee v. Gee, 19 N. H. 277.
3l6

There is neither latent ambiguity nor uncertainty in the

terms of the certicate, to bring it within the meaning of the
rule.
The call of the certicate is for a post.
A stump does
not answer the call. If parol evidence is admissible to show

that a stump, and not a post, is the actual corner, it would be
equally competent to show a pile of stones, or any other mon
ument uncalled for. This would not be construing the calls

of a survey, but making them; it would not be an application
of the rule that monuments control courses and distances, but
an infringement of the rule that in the absence of latent am
biguity, a deed cannot be varied or contradicted by parol evi
dence. It would not be controlling courses and distances by
monuments, but controlling both by parol evidence. Clare
mont v. Carlton, 2 N. H. 369.
The rule is that where monuments are relied upon to con

trol courses and distances, they must be found as called for.
Buckner v. Lawrence, 1 Doug. Mich. 19; McCoy v. Gallo

way, 3 Ohio, 383; Seaman v. Hogeboon, 21 Barb. 399; Fin
ley v. Williams, 9 Cranch, 315.
-
In the case of McCoy v. Galloway, supra, it was held that

where the patent called for a tree of one kind, it was not com
petent to show a tree of another kind.
In Buckner v. Lawrence, supra, it was held that a marked
tree did not satisfy the call for a post. The court say: The
proposition was not then to prove to the jury that there was a
disagreement between the courses and distances and the monu
ment and boundaries as given in the patent, and as they are
found on the land, but to show that there was an actual line
on the ground not described or called for in the patent, but in

fact intended by the surveyor, Greely, as one of the boundaries
of the plaintiff s grant. To admit parol proof of a marked
line nowhere mentioned in the deed, but entirely variant from
its calls, would serve to render title to real estate dependent,
not on deeds of conveyance and the language of the grantor,
and courses, distances and monuments, but on the mere mem
ory of witnesses.
~v- =
317
In this view the evidence introduced by the defendant, show

ing a monument other than the one called for, was not com
petent, and in the absence of any other monument or monu
ments to control the courses and distances of the original sur
vey, there was no error in the first instruction.
The defendants' case was the same as if no monuments had
been given or called for.
In such case parol evidence is not
admissible to control the courses and distances.
3 Wash. R.
P. 403; Drew v. Swift, 46 N. Y. 209; Bagley v. Morrill, 46

Vt. 94.
The last line of the instruction, viz.: That none of the

ground covered by the original location certificate is sued for
in this case, would be objectionable, had not the fact which is
stated been admitted.
The instruction was equally justified in another view of the

C386.
Marking the boundaries of the surface claim as required by

statute, is one of the first steps towards a location. It serves a
double purpose.
It operates to determine the right of the
claimant as between himself and the general government, and

to notify third persons of his rights. Another seeking the
benefits of the law, going upon the ground, is distinctly notified
of the appropriation, and can ascertain its boundaries. He

may thus make his own location with certainty, knowing that
the boundaries of the other cannot be changed so as to encroach
on grounds duly appropriated prior to the change. The preven

tion of fraud by swinging or floating, is one of the purposes
served.
The record also serves a double purpose. As between the

claimant and the government, it preserves a memorial of the
lands appropriated after monuments, in their nature perishable,

are swept away. It also supplements the surface marking, in
giving notice to third persons. Golden Fleece v. Cable Con

solidated, etc. Co. 12 Nev. 312; Gleason v. Martin, White
M. Co. 13 Nev. 471.
Counsel for the appellant submitted to the court below in
318

their rst instruction, and urge here the following proposition:

That when a lode is marked as required by law, it is to be
presumed such marking is suicient to notify all persons of the
appropriation of the ground within the surface limits of such
boundaries, and a person is not bound in law to keep the cor
ners of his claim marked and in the position they were
originally placed; that when a claim has been lawfully and
properly located, the law presumes it will remain so, and that
all subsequent owners have at least constructive notice of the
prior appropriation of the ground thus located, even though as
a matter of fact they had no such notices.
\Ve are dealing with claims, not patents or grants, where the
fee has passed.
'
Whether a claimant with a true record must keep good his

surface monuments we need not say,-the record in this case
on the theory of the defendant, was not a true record.
Where there is a variation to_ any considerable extent be
tween the courses and distances of the location certicate and
the monuments established on the ground, the record with its
misdescription, in point of fact, gives no notice of the ground
actually appropriated. If the monuments are swept away, no
search, no exercise of prudence, diligence or intelligence, would
advise the subsequent locator of the prior appropriation. In
such case the rule demanded by the defendant would work the
greatest injustice and hardship, and would be an interpretation
of the law in the interest of erroneous records and indolent
claimants. The record failing in its constructive notice, I
think it ust to insist that the statutory monuments shall be
found performing their statutory and essential duty of actual
notice, and to say that where a variation exists between the
monuments and the courses and distances of the location certi
cate,-it is necessary prior to patent for the locator, as against
subsequent locators, to keep up his monuments to an extent
that gives fair and reasonable notice.
In other words a claim
ant who has not kept up his boundary posts, will not be per
mitted to show the courses and distances of his recorded loca
319
tion to be erroneous, when the right of an intervening locator

without notice, will be prejudiced.
Tried by this rule, the defendant had no case, and the first
instruction was justified.
At the date of the Glendower location there were no monu
ments in existence at the west end to warn the plaintiffs that

the ground had already been appropriated; neither were there
any center stakes at the center of the side lines. The only
monuments claimed as in existence at that time at the west
end, where the conflict arises, was a stump partially blazed

and imperfectly marked in pencil.
The certificate instructed the subsequent locator to look for
a post at this corner; it does not advise him that a stump had
been utilized as a post.
If the pretensions of the defendant are to be allowed, there
would be no protection for a subsequent locator against
swinging locationsan evil against which the strict require
ments of the statute were intended to protect.
It was, therefore, competent for the court, the facts being
undisputed, to say to the jury that the defendant, not having
maintained his location monuments so as to give notice of the
ground appropriated, that he could not claim ground other
than that which was described in his record as against a sub
sequent locator.
The second instruction given by the court was objectionable.
The requirements that the side posts be placed in the center of
the side lines is satisfied if they be substantially at the center.
Where there is a discrepancy of one hundred and fifty feet, as
in this case, they cannot be said to be in the center.
1 think it is too much to say, however, the claims being
otherwise marked as required by statute, that the failure to place
the side posts in the center of the side lines, will invalidate
the location.
Such an omission might exist with all the cor
ner posts properly placed and the lode exposed and worked the
entire length of the lode.
It would be an unnecessarily harsh and unreasonable con
struction of a beneficent statute.
320
SUPREME
CouRT
oF CoLoRADo.
L. C. L. I. Co. v. Cowan et al.
It is reasonable to say, however, that the statutory require

ments respecting the marking of the surface boundaries with
posts, are so far imperative as to require that the boundaries
may be, in the language of the statute, readily traced by
them, and that the notice which the statute contemplates and
seeks, by and through them, may not be substantially impaired
by any omission.
As independent of this instruction, the defendant had no
case, the giving of it was error without prejudice.
It is not necessary to examine any of the other assignments.
The judgment of the court below is affirmed with costs.
Judgment affirmed.
LARIMER County LAND IMPROVEMENT Co. v. Cow

AN
ET AL.
In order that a misrepresentation may support an action or be of any avail

whatever as a ground of relief in equity, it is essential that it should be ma
terial in its nature, and should be a determining ground of the transaction.
It is not enough that it may have remotely or indirectly contributed to the
transaction.
Appeal from District Court of Weld County.

Mr. H. N. HAYNEs and Messrs. HAYNEs & DUNNING, for ap
pellants.
Messrs. MARKHAM & PATTERSON, for appellees.
ELBERT, C. J. This was a bill filed by Andrew Cowan,
praying the cancellation of a deed made by him. to the appel
lant.
*
321
Andrew Cowan having deceased, the appellees were substi

tuted as parties.
The bill represents that defendant is a corporation, doing

business in Larimer county, with a chief characteristic and
object of establishing colonies, acquiring lands, and building

up of towns thereon.
On December 3, 1872, defendant was
seized and possessed of certain lands near the old town of Fort
Collins.
Orator was seized in fee of a large amount of land, includ

ing a forty-acre tract on which the old town of Fort Collins
was located, a part of which had theretofore been platted into

streets, etc. In 1872 defendant opened an oice in or near
Fort Collins, pretendedly to carry out the business for which
it was formed, but really to acquire land in and near the
old town of Fort Collins.
In November, 1872, oicers and
agent of defendant approached orator to negotiate for transfer

of certain lands of his to defendant, and with fraudulent in
tent, to induce him to convey, fraudulently represented to him
that defendant had organized a colony of people, and would

locate on his land if he would convey a portion to defendant
(describing the tract as in deed). Designing to cheat him,
they represented if he would convey to defendant said portion,
they would plat same, open it to sale and settlement, and
cause valuable improvements to be erected thereon, and locate
a colony of people, and thus the lands reserved by him would
be so enhanced in value as to more than compensate him for
conveying to defendant. Believing them, he, on December 3,
1872, conveyed a portion of said forty-acre tract (describing
what was conveyed, as appears in deed), for the expressed con
sideration of one dollar, but really none, except belief in their
representations.
On obtaining the conveyance, intending to injure him, they

laid out the town and located a colony on a different tract, and
caused valuable improvements to be erected thereon; withheld
the land so conveyed from market; refused to locate a colony

thereon; would not allow others to do so, or erect any im
21
OIJ LO
Q
Suriname Couar or Conoaano.

provements thereon; and laid out streets and alleys in the new
town, so as not to harmonize with those in the old town before
platted in part upon the tract conveyed by him.

Defendant so managed in the location of new town as to
render orators lands as valueless as possible, which conduct
was from a desire and intent to cheat and defraud orator;
defendant had no intention of carrying out its representations

when made; and they were made to cheat and defraud him
and get the land without consideration. He would not have
conveyed but for such representations. Defendant is bankrupt
in fortune, and an action at law would be unavailing.
The answer denies Covs-'aus deed was obtained by fraud or

through fraudulent representations of defendant or its oicers;
admits that aportion of the tract conveyed had been laid off in
town lots; denies that he relied upon the representations as
charged in the bill in conveying to defendant, and denies the
claim that such representations were the only consideration.
Since the conveyance, defcndants conduct clearly proves and
tends to show all representations or promises in consideration
of conveying to it were made in good faith, and have been car
ried out and performed to the strict letter, and none that were
false or fraudulent have ever been made by defendant or on its
behalf to orator, as set forth in bill. Denies laying out addi
tion after conveyance, causing lots and streets to run in dif
ferent directions from those already laid out. At time of con
veyance to defendant there was no legally organized town or
a town platted with maps duly recorded. In laying out town
by defendant, great care was taken to lay out broad and regular
avenues and streets, and with especial reference to buildings
already erected, so as not to disturb or injure owners; denies
using any means or doing any acts tending to render his lands
worthless or depreciate them in value. Defendant renders
them more valuable by expending large sums of money in de
veloping the country in and about said town; induced large
numbers of people to locate there; made valuable improvements
thereabouts by constructing large irrigating canals; setting out
323
and cultivating large numbers of shade-trees on streets and

avenues. All this had tended to and has greatly enhanced ora
tors lands in value and rendered them more valuable; denies re
fusing to sell any lots or parcels of the land so conveyed, or
withholding from market. Defendant says orator is not entitled
to relief against it, touching matters complained of in bill.
The evidence was taken by a master, and upon the nal

hearing the court below entered a decree canceling the deed.
We are of the opinion that the evidence does not warrant
the decree.
All the witnesses agree that the consideration of the con
veyance by Cowan to the Improvement Company, was in
part, at least, the location of its colony at the town of Fort

Collins. To this extent, it sufciently appears that it engaged,
and its engagement in this respect was fullled.
A large emi
gration and settlement were induced, and extensive improve

ments in building, and the construction of irrigating canals
were inaugurated and completed.

It is insisted, however, that the location of the business cen
ter of the new town at the common corner of the four forties,
or what seems to be regarded as substantially the same thing,
to leave the business center of the old town undisturbed,
entered into and formed a part of the consideration moving to

Cowan.
While it appears from the evidence that this would have
been to the interest of Cowan, and would have enhanced to a
greater degree the value of the lands reserved by him, it does

not suiciently appear that the company, through its agent,
engaged with reference to it, or that it denitely formed a part
of the consideration inducing the conveyance.
The treaty for the Cowan forty extended over a period of
two weeks, and was participated in by a number of persons at
different times.
Rhodes, Mason and Matthews, who engaged
in the earlier negotiations as agents of the company, testify

that they represented to Cowan that it was not the intention
to disturb the old business center, or, as they sometimes put
324

it, it was to be located at the common corner of the four for
ties. Howes, Meldrum and Cameron, who also engaged in the

negotiations on behalf of the company, and who nally con
summated them, testify that there was no understanding touch
ing the location of the business center, and that the controll
ing and only consideration was the location of the colony at
Fort Collins instead of at La Portea location talked of and

contemplated by the agents of the company in case of failure
to secure the Cowan forty.
It cannot be said that the representations testied to by
Rhoades, Mason and Mathews were intended or received as a
stipulation; they do not show that the location of the business

center formed a substantive part of the contract.
In order that a misrepresentation may support an action
or he of any avail whatever as a ground of relief in equity, it
is essential that it should be material in its nature, and should
be a determining ground of the transaction. The misrepre
sentation must be, in the language of the Roman law, dolus

dam locu/m contractui. There must be the assertion of a fact
on which the person entering into the transaction relied, and
in the absence of which it is reasonable to infer that he would
not have entered into it at all, or at least not on the same
terms. Both facts must concur; there must be false and ma
terial representations, and the party seeking relief should have
acted on the faith and credit of such representations. * * *
A misrepresentation goes for nothing unless it is a proximate
and immediate cause of the transaction. It is not enough that
it may have remotely or indirectly contributed to the transac
tion, or may have supplied a motive to the other party to enter
into it. The representation must be the very ground on which
the transaction has taken place. Kerr on Fraud and Mis. 73.
In the later and nal negotiations which resulted in the con
veyance by Uowan, the location of the business center does not
appear to have been mentioned.
Great and permanent benets have owed to the complain
ant by reason of the location of the appellants colony at Fort
<~-4
325
Highland Ditch Co. v. Mumford.
Collins, as agreed upon, and his conveyance to the company

should not be canceled except upon much clearer proof of
fraud than appears in this record.
The decree of the court below is reversed, and the cause re
manded.
Decree reversed.
THE HIGHLAND DITCH Co. v. MUMFORD.

To constitute due diligence does not require unusual effort or expenditures,
but only such constancy in the pursuit of the undertaking as is usual with
those in like enterprises. Such assiduity as shows a bona fide intention to
complete the undertaking within a reasonable time.
Appeal from District Court of Boulder County.

Messrs. WRIGHT & LoGAN, for appellant.
Mr. B. L. CARR, for appellee.
This action was submitted upon an agreed statement of
facts. It was also stipulated and agreed, that the judgment
of the court shall decide this action; that the defeated party
shall have sixty days from notification of the decision of the
court in which to take an appeal, file bill of exceptions and
undertaking.
The bill of exceptions shows that the cause was submitted
to the court without the intervention of a jury, and is, omitting
the formal parts, as follows:
The said parties hereby agree upon the following statement
-
of facts, and submit the same to the court for the determina
tion of the points in controversy hereinafter specified:

That on or about the first day of February, A. D. 1871,
The Chicago-Colorado Colony was incorporated under the laws
326

of the Territory of Colorado; that the objects for which said

corporation was formed were: To aid, induce and encourage
immigration to the Territory of Colorado; to secure lands for
colonization purposes and locate colonists thereon, and to con
struct irrigating ditches for supplying said lands with water;
that the price of a membership in said colony was one hundred
and fifty-five dollars, and each membership entitled the holders
thereof to a tract of land or certain town lots, such as might
be selected by the member with the consent of the Colony
trustees; that in the early part of the year 1871 said Chicago
Colorado Colony commenced the survey of an irrigating ditch,
commencing at a point near the mouth of St. Vrain Canon,
and running easterly as near the divide between St. Vrain and
Little Thompson Creeks as practicable, for a distance of about
twenty miles, for the purpose of irrigating certain lands of said
Colony, and of the members thereof; that during the spring
and summer of 1871 said survey was completed, and during
the winter of 1871 and 1872 the work of construction of said
ditch was commenced, and during said time grading equal to

about four or five miles of said ditch, 18 feet wide by three
feet deep, was done; that said ditch was known as a Colony
ditch, and was designated by the name of The Excelsior
Ditch; that during the month of January or February, 1871,
the plaintiff purchased a membership in said Colony, and
about the last of February or the first of March, 1871, he set
tled upon the east # of southeast + section 22, township 3,
north range 69 west, and occupied the same as a homested
under the laws of the United States; that before locating said
homestead the plaintiff consulted one of the trustees of said
Chicago-Colorado Colony with reference to said location, who
informed the plaintiff that all or nearly all of said land could
be irrigated from the Colony ditches, and the plaintiff was in
duced to make said location by reason of said information, and
by reason of the proposed construction of said ditch, and an
other Colony ditch known as the north branch of the Pleas
ant Valley Ditch; that on the 18th day of July, A. D. 1871.
327
the plaintiff obtained from the said Chicago-Colorado Colony

a deed in writing, of which the following is a copy:
This deed, made this 18th day of July, A. D. 1871, between
the Chicago-Colorado Colony of the first part, and Joseph M.
Mumford, of the county of Boulder and Territory of Colorado,
of the second part, witnesseth: That whereas, the said Joseph
M. Mumford hath, in accordance with the provisions of the by
laws of said Chicago-Colorado Colony, taken from the United
States under the homestead laws thereof, the east # of the
southeast 4 of section twenty-two (22) in town three (3) north,

and range sixty-nine (69) west, in lieu of colony lands on
membership No. 274. Now, therefore, the said Chicago-Col.
orado Colony grant, bargain, sell and convey unto the said
Joseph M. Mumford, the right to take and use, under such reg
ulations as may be adopted for the distribution of water, from
the Colony ditches so much water as may be necessary, year
after year, to irrigate and farm said above described tract of
land. Provided, nevertheless, that this right shall be subject

to such assessments as may hereafter be levied upon member
ships for repairing and enlarging ditches.
In witness whereof, two of the trustees of the said Chicago

Colorado Colony, have hereunto set their hands and the
seal of said Colony, the day and year first above written:
(Signed) ENOCH J. CoFFMAN,
-
(Colony Seal.)
SETH TERRY,
Trustees.
That said deed was duly acknowledged before a Ntary Pub

lic in the ordinary manner of acknowledgment of deeds, and
on the 15th day of August, 1871, said deed was filed for record
in the office of the county clerk and recorder of Boulder county,
and duly recorded in the records of said county. That at the
time of the execution of said deed, the said Excelsior ditch was
one of the Colony ditches mentioned in said deed, and the only
Colony ditch capable of irrigating about seventy acres of plain
tiff's said homestead, and it was the intention of the said Chi
328

cago-Colorado Colony by said deed to convey to the plaintiff a

right to take water from said Excelsior ditch whenever the
same should be completed. That on or about the 4th day of
April, 1872, the defendant was organized as a corporation
under the laws of Colorado; and that on or about the 1st day
of October, 1872, the said Chicago-Colorado Colony made an

agreement with the defendant to transfer said Excelsior ditch
to defendant, the said Highland Ditch Company. That the

defendant took possession of said ditch under said agreement,
and continued the work of construction during the winter of
1872 and the spring of 1873, and on or about the 1st day of
April, 1873, turned the water of St. Vrain creek into said
ditch, through a headgate 18 feet wide by 3 feet high, and from
that time to the present, said defendant has been in possession
of said ditch and has been engaged in the business of selling
water for irrigating purposes to persons living under the line
thereof.
That on the 21st day of March, 1873, the defendant received

from the said Chicago-Colorado Colony, a deed in writing, of
which the following is a copy:
This deed, made this 21st day of March, in the year of our
Lord one thousand eight hundred and seventy-three, between
The Chicago-Colorado Colony, of the county of Boulder and
Territory of Colorado, of the first part, and the Highland Ditch
Company, of the county of Boulder and Territory of Colorado,
of the second part, witnesseth: That the said party of the first
part, for and in consideration of twenty-five hundred (2,500)
dollars to the said party of the first part in hand paid by the
said party of the second part, the receipt whereof is hereby
confessed and acknowledged, has remised, released, sold, con
veyed and quit-claimed, and by these presents do remise, sell,
convey and quit-claim unto the said party of the second part,
its successors and assigns forever, all the right, title, interest,
claim and demand which the said party of the first part has
in and to the following described property, situate, lying and
329
Highland Dith Co. v. Mumford.
being in the county of Boulder and Territory of Colorado, to

wit:
The ditch formerly known as the Excelsior Ditch, taken

out of the St. Vrain Creek in the St. Wrain Canon, and run
ning easterly as near the divide between the St. Vrain and
Little Thompson Creeks as practicable, together with the right
of way for said ditch over all lands owned by the said party of
the first part, and the cabin and such tools as were purchased
for the construction of said ditch, and are now on hand; to have
and to hold the same, together with all and singular the
appurtenances and privileges thereunto belonging, or in
anywise thereunto appertaining, and all the estate, right,
title, interest and claim whatsoever of the said party of the
first part, either in law or equity, to the only proper use, bene
fit and behoof of the said party of the second part, its succes.
sors and assigns forever.
In witness whereof, the said party of the first part has here
unto set its signature and affixed the corporate seal, by the
hands of its President, the day and year first above
written.
(Signed)
CHICAGo-CoLoRADo Colony,
By RIENzi STREETER,
President.
Corporate seal of
Chicago Colorado
Countersigned,
CHARLEs E. DAY,
Colony.
Secretary C. C. C.
That said deed was duly acknowledged before a notary pub
lic, by said Streeter, as the free and voluntary act of said Col
ony, in the usual manner of the acknowledgment of deeds.
That the same was filed for record in the office of the county
clerk and recorder of Boulder county, on the 31st day of

May, 1876, and duly recorded in said office. That both of said
deeds hereinbefore set forth were made and executed pursuant
to and in accordance with the order and authority of the board
of trustees of said Chicago-Colorado Colony. That the de
fendant has expended in the work of construction on said
O; C/.7 O
SUPREME CoURT or Coron.-mo.

Highland Ditch C0. V. Mumford.
Highland Ditch the sum of thirty-six thousand dollars. That

said ditch is of the same width as was originally contemplated,
and partly constructed by said Chicago-Colorado Colony, and
that its running capacity is nine thousand inches of water,

That no assessments have ever been made upon the member
ships of the Chicago-Colorado Colony for repairing or enlarg
ing said ditch, and the expense of construction incurred by

the defendant was paid out of the proceeds of the capital
stock of said Highland Ditch Company. That the market
value of said stock is the par value thereof. That since the
time the water was rst turned into said ditch, the defendant
has sold water therefrom to the amount of twenty-six thousand
nine hundred and fty-four dollars. That of this amount
six thousand four hundred (6,400) dollars has been expend
ed in the improvement of the ditch and in payment of
the ordinary running expenses, and the balance, $20,500.00,
has been paid in dividends to stockholders, and remains as
assets in the hands of said company, and that no assessments
have ever been made by said company for repairing or enlarg
ing said ditch over or above the amount of its capital stock,
and that no assessment has ever been made upon or demanded
of the plaintiff, and no contribution of any kind, either by the
Chicago-Colorado Colony or the plaintiff, for repairing, enlarg
ing or operating said ditch.
That the plaintilfis astockholder
in said Highland Ditch Company, and receives dividends upon

his stock the same as other stockholders. That no regulations
were ever established by the Chicago-Colorado Colony concern
ing the distribution of water from any of the Colony ditches.

That the regulations of the defendant governing the distribu
tion of water from its ditch are as follows, to wit :
Water will be sold to stockholders only.
The water sold shall be measured from the companys boxes

without water-pressure above the top of the aperture, on the
inside
of the
from for
which
l Water
to box
be paid
by the
thewater
inch isatmeasured.
such price as the
trustees may determine.
m_
331
Highland Ditch C0. v. Mumford.
The water-boxes to be at all times under the control of

the water-master, and he to act under the direction of the
trustees.
Persons desiring to use water must apply for it on or before
the fteenth day of April, each year.

The company will noti be responsible for damages for lack
of water in the creek.
Wlienever there is a lack of water in the ditch, owing to
scarcity of water in the creek, stockholders who may have
purchased water, shall be entitled to take seven inches of
water for each share of stock, and the balance shall be divided
among persons purchasing water in proportion to the amount
purchased.
That during the irrigation season of 1877, plaintiff pur
chased from defendant, for the use of his said homestead, ninety
(90) inches of water; that he paid ninety dollars therefor, by
executing his promissory note to the defendant for the sum of
ninety dollars, payable in October, 1877; that said note is still
unpaid. That in the spring of 1878, plaintiff demanded of
the defendant a suicient amount of water from its ditch,
under his deed, to irrigate his said homestead, year after year,
without paying therefor, and that defendant refused to deliver

the same, and that plaintiff, during said year, took from said
ditch ninety inches of water for said land and paid the defend
ant therefor the sum of ninety dollars.
That during the irrigating season of 1879, the defend
ant delivered to the plainti, out of said ditch, his pro
portionate amount of eighty inches of water, at the usual price
of seventy-ve cents per inch, with the understanding and

agreementbetween the parties, that if the judgment in this
suit shall be against the right of the plaintiff to take water
under his said deed, then the plaintiff should pay for the
amount actually delivered; but if judgment in this ease be in
favor of plainti"s right to take water, then the defendant

should take nothing for said water.
That the defendant actu
ally delivered to the plaintiff, under said agreement, forty
SUPREME CoURT OF COLORADO.
332
inches of water, worth thirty dollars. That the average

amount of water necessary to irrigate that portion of plain
tiff's said land, lying under said ditch, is seventy (70) inches,
year after year, according to the system of measurement now
in nse by the defendant.
The points in controversy, and upon which the decision of
the court is asked, are as follows, to wit:
First. The plaintiff claims the right to take and use water
from the said ditch sufficient to farm and irrigate seventy

acres of his said land, subject only to the law relative to dis
tribution of water in times of scarcity, which right the de
fendant denies.
Second. The plaintiff claims the right to take water from

defendant's ditch, year after year, for the purpose of irrigating
his said farm, in quantity averaging seventy inches per year,
which right the defendant denies.
Third. The plaintiff demands a judgment against the de
fendant for the sum of ninety dollars, being the amount paid
for water during the year 1878; that the note given by plain
-
tiff for water in 1877, be declared canceled, and that the
defendant be ordered to furnish water to plaintiff from said

ditch, sufficient to irrigate seventy acres of the said land, year
after year.
Fourth. Is the plaintiff bound to comply with the regulations

of the Highland Ditch Company governing the distribution
of water from said ditch, as (1st) to the manner of measure
ment; (2nd) as to the control of boxes; (3d) applying for wa
ter each year?
Fifth. Has plaintiff the right to take water from said ditch
for irrigating said land; and if so, upon what conditions, in
what quantity and under what regulations?
Sixth. What right, if any, has the defendant to assess the
plaintiff'
I.
For cost of construction of said ditch?
II. For contingent and running expenses in the past?

III. For contingent and running expenses in the future?
333
IV. For value of water delivered, past or future?

V.
For the maintenance of the ditch?
Seventh. The defendant demands judgment against the

plaintiff for the sum of one hundred and eight dollars, the
amount of said note and interest, and for the further sum of
thirty dollars for the value of water delivered during the year
1879, and that the plaintiff be perpetually enjoined from inter
fering in any manner with the defendant's ditch, or asserting
any right, title or interest in and to the same.
B. L. CARR,
Attorney for Plaintiff.

WRIGHT & LoGAN,
and R. H. WHITELEY,
Defendant's Attorneys.
Affidavits were filed to the effect that the controversy was

real and the proceedings instituted in good faith, to determine
the rights of the parties thereto.
Afterward the Hon. William E. Beck, Judge of the Dis
trict Court, pursuant to the stipulation, filed his written opin
ion herein, which was as follows:
It is the opinion of the court that the rights of the parties

to this controversy are as follows:
The plaintiff is entitled under his deed to a sufficient quan

tity of water from defendant's ditch to irrigate his seventy
acres of land, subject, however, to the law relative to the dis
tribution of water in times of scarcity, and subject to the regu

lations of the defendant pertaining to same subject, which are
not in conflict with said law, and which apply equally to all
members of said defendants corporation.
This right of the plaintiff is a perpetual right under his deed
from the Chicago-Colorado Colony, his grantor, and the de
fendant must be held to have purchased with notice of, and
subject to the terms of the plaintiff's prior grant.

It follows from this conclusion, that the note executed by
the plaintiff to the defendant must be surrendered and can
334

celed, and that the sum of ninety dollars, paid defendant by

plaintiff in the year 1878, must be refunded to the plaintiff.
We must hold that the plaintiff is bound to observe all rea
sonable regulations made by the Highland Ditch Company
respecting the distribution of water from the said ditch, man
ner of measurement and control of boxes, which are of uniform
operation upon all the members of said ditch company, and do

not tend to deprive the plaintiff of a sufficient quantity of
water to irrigate his said tract of seventy acres of land when

the ditch contains its ordinary supply of water. It is not,
however, necessary for the plaintiff to apply for water each
year. The nature of his vested rights may properly be held to
constitute an annual continuing application, which the defend
ant is obliged to recognize and supply.
We cannot say that plaintiff has the right to take his quan
tum of water from the ditch, contrary to the rules and regu
lations of the defendant, but it is the defendant's duty to make
a reasonable arrangement or regulation for supplying water
to the plaintiff, similar to the provisions in reference to the
members of corporations, whatever they may be, and it is the
duty of plaintiff to observe said regulations.
In respect to the last question submitted:
What right, if any, has the defendant to assess the plain
tiff 2
It is my opinion, that inasmuch as plaintiff does not par
ticipate with said ditch company, either in profits or losses

resulting from the sale of water, so far as the interests held by
the plaintiff under the Colony deed are concerned, that no as

sessment can be made against him, except for the purpose
contemplated in his deed from the Colony, which would simply

be for repairs or enlargements made after the completion of
the ditch.
No assessment can be made for water for the sev
enty acres, for original construction of the ditch, or for running
expenses. In respect to obligations of the plaintiff as a mem

ber of the defendant's company, no opinion is asked or ex
pressed.
335
The opinion and judgment are limited to plaintiff's and de
fendant's rights and obligations under the Colony deed, and

the court, being fully advised in the premises as to all matters
of fact presented herein, as well as all matters of law pertain
ing thereto, doth hereby order, adjudge and decree:

I. That the plaintiff has and henceforth may exercise the
right to take from the defendant's ditch, year after year perpet
ually, a quantity of water sufficient to irrigate seventy acres
of land; that said quantity is seventy inches annually, and that
said water be taken subject to the law now in force or hereafter
to be in force, relative to measurement and distribution of
water for irrigating purposes, and subject to the right of the

defendant's corporation to assess the plaintiff for repairs and
enlargement of the Highland Ditch made since its completion.

That said water be delivered to plaintiff by the defendant, sub
ject only to such laws and such reasonable regulations as may
be prescribed by the defendant relative to distribution of water
to its members, and that no compensation be required of plain
tiff therefor.
II. That the plaintiff have judgment against the defendant

for the sum of ninety dollars, and that he have execution there
for.
III. That the note executed by plaintiff to the defendant

for water from said ditch in the year 1877, payable in October,
1877, be and the same is hereby canceled and annulled, and
the defendant and its assigns are hereby perpetually enjoined
from bringing any action thereon.
IV. That the defendant take nothing from the plaintiff for
water furnished the plaintiff for irrigating his homestead in
the submission herein described, during the year 1879.
And it is further considered and adjudged by the Court that
the costs of this action be paid by both parties hereto in equal
parts, to be taxed by the Clerk of this Court.

W.M. E. BECK, Judge.
To which judgment and decree the defendant, by his coun

sel, then and there excepted and prayed an appeal.
330

Ennsnr, C. J. At the date of the Colony deed to the appel

lant, the ditch conveyed stood charged with the servitude
created by the Colony deed to the appellee, and the appellant
took the ditch subject thereto.

If it could be permitted, the appellant, to attack the title of
its grantor to avoid this servitude, we see no reason, on the
evidence in this case, for saying that at the date of its convey
ance to the appellant, the Colony Company had acquired no

title or property in the ditch in question.
The ditch was to be twenty miles long, eighteen feet wide
and three feet deep. The survey was commenced in the early
part of 1871, and completed in the summer of that year. The
work of construction commenced during the winter of 1871-2,
and four or ve miles of the ditch were completed the requisite
width and depth.
About the rst of October, 1872, the appellant took posses
sion of the ditch under an agreement of purchase.
To constitute due diligence does not require unusual efforts
or expenditures, but only such constancy in the pursuit of the
undertaking as is usual with those in like enterprises. Such
assidnity as shows a bonade intention to complete it within
a reasonable time. Op/air S. M. O0. v. Carpenter, 4 Nev.
534.
There is no reason for saying that the want of diligence in
this case, upon the part of the Colony Company, was such as
to prevent the appropriation of the water dating back to the
commencement of the work, there being no intervening claim
ants.
These are the only objections made by counsel to the decree

of the court below, and it will be airmed.
Decree armed.
Mr. Justice Baox having, as judge of the court below, ren
dered the decree therein, did not participate in this decision.
~ww-
337
Clayton et al. v. Checley.
CLAYTON ET AL. V. CHEELEY.

1. A writ of error must be prosecuted within ve years from the date of
the rendition of the decree in th: court below.
2. Heirs-at-law, prosecuting in that character, have no greater rights
than the ancestor whom they represent, and where he, if living, would not
be entitled to a writ of error, it follows that his personal representatives, as
such, are equally without the remedy.
Mr. WILI.ARD TELLER, for defendant in error, now moved to
dismiss the writ for reasons stated in the opinion.
Messrs. Rocxwnm. & BISSELL, contra.

BECK, J.
Two motions, both led on the same day, are
pleadings in this causeone on the part of plaintiifs in error,

to reverse the decree below without a submission of the cause,
on the ground that this court held in another proceeding in

volving the validity of this decree, that it was void for want of
jurisdiction ;* also for the reason that the defendant has not
joined in error, although served with process.

On the part of defendant in error a motion is interposed to
dismiss the writ of error, because not sued out in time, and
because no writ of error lies in this cause.
The motion to dismiss the writ of error has precedence.
The record disclosed that the complainant below, James VV.
Clayton, since deceased, obtained a decree of divorce from the
plaintiif in error, Sarah A. Clayton, his wife, at the April

term, 1868, of the Gilpin County District Court. Said Sarah
A. Clayton, and Lillie W. and Jessie L. Clayton, the latter de
scribed in the writ as daughters of Sarah A. Clayton, and
heirs-at-law of James W. Clayton, deceased, have sued out the
writ of error. The writ bears date February 24-, 1880.
So far as Sarah A. Clayton is concerned, her right to the
writ is clearly barred by lapse of time. In respect to the
Clay,/(rm d al. v. Clayton: Hire, e'c., 4 C01. 410.
22
338

Coloraclo Springs Co. v. Hopkins.
other plaintiffs in error, We are of opinion that they have no

standing in court. They are described as heirs-at-law of James
W. Clayton, deceased. Prosecuting in this character, their
rights could be no greater than the rights of the ancestor whom
they represent. But the decree sought to be reversed was in fa
vor of the ancestor, granting him the specic relief prayed for
in his bill. He therefore, if living, would not be entitled by
cliange of circumstances or sentiment to have the decree re
versed; from which it necessarily follows that his personal
representatives, as such, are equally without remedy. The de_
cree does not affect their property rights as heirs of the de
ceased, and as prospective heirs of their co-plaintiff in error,

Sarah A. Clayton, they are equally without any standing in
court.
The motion to dismiss the writ of error must prevail.
Writ dismissed.
THE Conoaano Sranzos Co. v. HoPKms.*

When a. party declines to avail himself of the opportunity offered in the
court below to amend his pleadings upon their being adjudged insufficient, he
brings his cause into this court upon his own judgment and at his own
peril.
UPON petition for rehearing the following opinion was de

livered:
Pan. Cunmu.
The rst reason assigned why a rehearing
should be granted in this cause is, that this court in the opinion
led said: The property being in the possession of the defend
ant, Hopkius, at the time of the trial of the replevin suit, if the
right of possession was then in the plainti:' in error, the judg
ment should have provided for its return, and this counsel
A nte, page 206.
__-._1|
339
suggests is error in fact, as plaintiff had possession of part of

the property at time of trial of replevin suit. A reference to
said opinion will show that this language was used in discuss
ing the correctness of the ruling of the district court in sus
taining the demurrer, interposed to the second cause of action

in the complaint. This cause of action wasPlainti' says
that said Hopkins has not delivered to it the whole of said
chattels, butfailed to deliver a portion of said chattels amount
ing in value to the sum of ve hundred dollars.
We say in
respect to this property that there being no order for its re

turn, it does not appear that there was a breach of the replevin
bond as to it.
The condition of the bond, as set out in the complaint in this
cause, is: Now if the said R. L. Hopkins shall pay all costs
which have accrued or may accrue in this said action of replev
in, and deliver said property to the said Colorado Springs

Company in case return thereof shall be awarded, and pay all
damages that may accrue to said plaintiff, the Colorado Springs

Company, by reason of the unlawful detention of said property,
then this obligation to be void, otherwise to remain in full
force and effect.
Counsel insists that under this condition of the bond de

fendant in error and his sureties were liable for the damages
caused by the wrongful detention. But it does not appear
from the present complaint that Hopkins was adjudged in the
replevin suit guilty of a wrongful detention of any chattels
after the issuance of the writ of replevin, and it shows airm
atively that he recovered damages in that proceeding for the
detention prior to the issuance of the writ.
According to the allegations of the complaint in this cause,
the nding and judgment in the replevin suit was to the
effect that plaintiff was at the time of the issuance of said
writ of replevin entitled to the possession of said chattels; that

plaintiff also recovered damages for the detention of said chat
tels after demand therefor, and before the issuance of said writ
to the amount of one dollar. and for costs of suit amounting
to the sum Of. fty dollars and eighty cents.
340

The replevin suit was brought to try the right of possession

to the entire property. The judgment was that the plaintiff
in error was entitled to the possession of the property at the
time the writ of replevin issued, and damages were allowed
for detention up to that time. But it does not appear from
this complaint that it was adjudged in that proceeding that
said plaintiff was entitled to possession of any portion of the
property after the writ issued, or at the time of the trial, and
there is no averment in this complaint that the merits of the
controversy respecting the property were not adjudicated in
the replevin suit. The replevin bond was executed after the
seizure of the property on the writ of replevin. Damages for
detention having been rendered up to that time, and no adju
dication that the property was wrongfully detained afterward,
it is difficult to perceive upon what principle of law the sure
ties can be held liable for a wrongful detention under the alle
gations of this complaint. It fails to state a cause of action
in this behalf, and the demurrer was, therefore, properly sus
tained.
The last reason assigned why the rehearing should be granted

is that the court erred in offirming the judgment without
remanding the cause and granting leave to amend.
It is not the practice of this court to reverse the decisions
and judgments of nisi prius courts when upon review no er
rors are found therein. Ample opportunity for amendment of
pleadings is afforded in those courts, and parties declining to
avail themselves thereof when their pleadings are adjudged by
such courts to be insufficient, bring their causes here upon
their own judgment, and at their own peril.
Petition for rehearing denied.
341
BRADBURY ET AL. V. DAVIS.

PETITION for rehearing.
PER CURIAM.
The petitioner asks for a rehearing, on the
ground that the court took an erroneous view of the case in
basing its decision as to the statutory bar upon the assump

tion that the complainant in the court below sought relief on
the ground of fraud. It is insisted that the action was in its
nature ea contractu, that the allegations of fraud were pleaded
as mere matter of inducement, and that the plaintiffs right to
recover, if he had such right, arose out of a vested right which
he had in the property in controversy by virtue of the copart
nership between him and the two defendants, Feely and Ells
worth.
We think it is a sufficient answer to this ground of the petition

to say that the property having been, prior to the suit, con
veyed by Feely and Ellsworth to Bradbury and the other de
fendants, the relief asked in the complaint was against these
latter defendants, as grantees of the property, who certainly
were not parties nor privy to any contract with plaintiff.
The real ground of relief as set out in the complaint, was the
conveyances of Feely and Ellsworth, made in fraud of the rights
of the plaintiff as a copartner with them in the first staking of
the mining claim. That right was in the partnership and in
whatever property the partners should acquire title to thereby.
The title to the property in question was in Feely and Ells
worth at the time of their conveyance by reason of their loca
tion of it in their own names sufficient to pass it to their

grantees without other notice than the deeds themselves.
The character of these deeds and their legal effect in passing
title are sufficiently discussed in the opinion in chief, and in the
absence of other authority against the views therein expressed,
need not be further noticed here. The petition for rehearing
will be denied.
Petition denied.
Q3 >-F LO
SUPREME Couur or COLORADO.

Stebbins v. Anthony et al.
STEBBINS V. ANTHONY ET AL.

Where the transcript of an amended record shows that notice was given
to the opposing counsel of the time when application would be made in the
court below for leave to correct the record, and that a copy of the petition in
that behalf had I een furnished, and the amendment having been made and
the cause being still pending in this court, leave will be granted in further
ance of justice, to le the supplemental record, although the cause had been
submitted at the previous term.
Error to Probate Court of Jeier-son County.

v
APPLICATION to le supplemental record in Supreme Court.

Mr. Tuouss Gsoaen and Messrs. BARTELS & Bnoop, for
plaintiff in error.
Mr. JOHN Q. Cusnuzs and Mr. E. L. JOHNSON, for defendants
in error.
Bscx, J.
'
This is an application for leave to le the tran
script of a supplemental record in this cause. The application

is resisted on the ground that the cause was submitted at the
last term, and that briefs and arguments have been led. It
is likewise suggested that if the motion is to prevail, all pre
vious steps and proceedings in the cause must be set aside,
including the joinder in error and submission.
The substance of the objections interposed is, that the ap
plication comcs too late. In support of the objections we are
cited to certain rulings of the Supreme Court of Illinois, upon
applications for writs of oe-rtiorari, upon suggestions of diminu
tions of the record.
These rulings establish the practice in that
court of permitting the writ to go, if prayed for at the same

term at which the cause was submitted. In such case the sub
mission and joinder in error are set aside upon the suggestions
of diminution. Steele v. The People, 40' I11. 59; B03/nto-n v.
Champlain, 40 Ill. 63.
1'
Drcnnnna TERM, 1880.
343
This, however, is not an application for a certiorari. No

diminution of the record has .been suggested. After the sub
mission of the cause at the last term of court, an application
was made to the court below, to permit the sheriff to amend

his return upon the original writ. Leave was granted, the re
turn amended, and permission is now asked to le the tran
script of the amended record in this court.
V
No opportunity was abrded the defendants in error to apply
for a ce1'tz'ora'ri in this case after its submission, for our records
show that it was submitted on the last day of the previous

term; but no such application was necessary.
In Rowley v. Ila-Ir//ms, 40 Ill. 71, it was observed that a writ
of certiorari is not necessary to bring up an additional or
amended record, but the party interested in making the amend
ment can le the same, and it will be considered in connection
with the original transcript.
The same court, in Bergen v. Riggs, ib. 61, say: If it

satisfactorily appears to this court that an error has intervened
in making up the record below, and that the party aggrieved
thereby has not, since its discovery, had an opportunity to ap
ply to that court for its correction, and that justice requires
that he should have such opportunity, we will continue the
cause so as to give him an opportunity to apply to the court
below to have its record amended.
The amendment made was a material one, and if application
had been made, even after the submission of the cause, for time
to apply in the court below for an amendment of its record, the
application would no doubt have been favorably considered.

although it would have worked a continuance. The decree
sought to be reversed was obtained upon constructive service
of process, the defendant being a non-resident. The original
return upon the summons failed to show that said writ had
been retained by the sheri' until the return day thereof; and
it did not contain the true name of the defendant therein.
These were the errors sought to be corrected by the amend

ment.
The transcript of the amended record shows that notice was
344

Home et al. v. Duff et al.
given to the opposing counsel of the time when application

would be made to the court below for leave to make the cor
rection, and that a copy of the petition in that behalf was

likewise furnished him.
The amendment having been made, and the cause being still
pending, we are of opinion that it would be in the furtherance

of justice to permit the supplemental record to be filed in the
CauSe.
If counsel for plaintiff in error shall deem it necessary, by

reason of this amendment, to assign additional errors, or to
file an additional brief, they will be permitted to do so upon
application.
Application to file the supplemental record allowed.
HoME ET AL. V. DUFF ET AL.

Where plaintiff failed to assign error during vacation under an order of
court, and defendant filed a motion to dismiss for non-compliance with the
order, no delay in the submission of the cause having occurred, the motion to
dismiss was denied.
Mr. E. MILEs and Mr. W.M. StoRY, for plaintiff in error.

Mr. J. P. BRocKwAY, for defendant in error.
PER CURIAM.
A motion to dismiss the writ of error in
this case, on the ground that no assignment of errors had been

filed, was overruled the last day of the April Term, and
an order entered allowing the assignment to be filed nunc pro
twmc.
Such assignment, however, was not actually filed until the last
day before the present term. Previous to this, another motion to
345
Higgins v. Brown et al.
dismiss the writ had been filed, on the ground of a failure to

comply with the order referred to. Since the failure to file the
assignment of errors during the vacation of the court has occa
sioned no real or considerable delay in the submission and
consideration of the case, we will overrule the pending mo
tion, and allow the assignment already filed to stand; but we
think this should be done only upon reasonable terms im
posed upon the party in default, and will therefore make the
order conditional that the plaintiffs in error pay the costs of
the case for the April Term at which the previous order was
made.
Motion denied.
HIGGINS v. BROWN ET AL.

Where a motion was made and sustained to vacate a judgment rendered
at the preceding term of the district court, held, that however erroneous the
order vacating the judgment, it was not an order upon which an appeal
would lie, being in no sense a final judgment.
Appeal from County Court of Lake County.

Mr. A. W. RUCKER, for appellant.
Mr. H. P. BENNETT, for appellee.

PER CURLAM. The motion to dismiss the appeal in this cause
assigns as grounds therefor, that the appeal was taken from an
interlocutory order of the court below, and not from a final
judgment.
The record discloses that appellees, Brown and Thum,
brought an action upon a promissory note against the appel

lant, the complaint being filed at the September term, 1879, of
the County Court of Lake County.
346
SUPREME Comm or Coron.-mo.

Becker, etc. v. Henderson.
Appellant appeared, answered the complaint, and led his

cross-complaint. At the November term, 1879, the default of
plaintis below was entered for failure to answer the cross-com
plaint, and afterwards, at the same term, judgment was entered
against the plaintis in favor of the appellant on the cross

complaint, for the sum of two hundred and twenty-six dollars
and costs of suit; the judgment reciting that this was the
amount due the defendant after allowing plaintiffs the full
amount of their claim.
The plaintiffs below led a motion at the January term,
1880, to vacate the jiiclgme it, which motion was allowed, and
this appeal is prayed from the order vacating the judgment.

However erroneous the action of the court may have been
in sustaining a motion made at a subsequent term to vacate a
judgment entered at a previous term, no appeal lies to this
court from such order. It is in no sense a nal judgment or
decree. Laws 1879, p. 226, Sec. 26.
The appellant having mistaken his remedy, the appeal must
be dismissed at his costs. Motion sustained and
Appeal dismissed.
BECKER, Impl. &c. v. HENDERSON, Administrator.

1. Leave having been granted to le a supplemental record in this court,
and it appearing that the supposed supplemental record was of matters sub
sequent to, and independent of the decree in the original record, the supple
mental record was stricken out upon the court's own motion.
2. A pla.inti' in error may dismiss his writ.
Messrs. Rooxwnm. & BISSELL, for plaintiff in error.

Mr. WILLARD TELLER, for defendant in error.
Pen Ctmmm.
Leave was asked in this cause at a previous
347
Becker, etc. v. Henderson.
sitting, in behalf of defendant in error, to le the transcript

of a supplemental record; no objection being.made by coun
sel for plaintiff in error, leave was granted and the transcript
was led.
Afterwards, the counsel for plainti in error moved to dis
miss his writ of error.
'
Upon looking into the transcript of the supplemental record,

it appears that a petition was presented to the court below at
its last term by the defendants in error, who were complain

ants in the original proceedings, asking the court to set aside
and vacate the decree originally entered in their favor, for rea
sons assigned in said petition; that the prayer of the petition
was granted and the former decree vacated; that at the same
term a wholly new and different decree was entered in
said cause, and that the transcript led was the transcript of
the proceedings at said last term, which resulted in this new
decree.
The transcript just led, therefore, is not the transcript of
proceedings in the cause pending here on writ of error, nor
supplemental thereto; but that of a new and independent pro
ceeding, which resulted in a wholly different judgment from

the one under review. The latter decree, therefore, is not
properly before us for any purpose and cannot be consid
ered in this cause; for which reason the court, upon its own
motion, will order the latter transcript to be stricken from the
les.
-
In-respect to the motion to dismiss the writ of error, we

know of no rule of practice that prevents a plaintiff in error
from the right to dismiss his own writ; and having elected to
exercise this right in the present instance, the order willbe
made that the writ of error be dismissed at the cost of plain

tiffs in error.
W1'zt of error ll87IM886d.
I
348
STEBBINS v. ANTHONY ET AL.

1. Under the weight of authority the jurisdiction of equity tribunals has
generally been asserted and maintained in this country in suits for divorce in
the absence of statutes, as well as under them.
2. By the act of January 31, 1872, the Probate Court of Jefferson County
was given concurrent jurisdiction with the district court in all actions at
law or in equity where the debt or sum claimed did not exceed two thousand
dollars, and therefore held, that in proceedings for divorce not complicated
with money or property claims exceeding two thousand dollars, such probate
court had jurisdiction.
3. Under the chancery act, before the adoption of the Code, in the com
putation of time of publication of summons, the rule was to exclude the day
of publication and include the first day of the term.
4. In adopting the statute of a sister State, the general rule is that the
Legislature adopt also the settled construction given such law by the courts
of that State.
5. The general current of modern authority is that where a statute re

quires an act to be performed a certain number of days prior to a day named,
or within a definite period after a day or event specified, or where time is to
be computed either prior or subsequent to a day named, the usual rule is to
exclude one day of the designated period and to include the other.
6. Under sections one and five of the act of February 11, 1870, the hus
band in a suit for divorce was a competent witness, and desertion held,
under the act, to be such a personal wrong as would bring the husband with
in the exception provided by the terms of the statute.
Error to Probate Court of Jefferson County.

Mr. THOMAs GEORGE and Messrs. BARTELs & Blood, for

plaintiff in error.
Mr. J. Q. CHARLEs and Mr. E. L. JoHNsoN, for defendants in
error.
BECK, J. In the month of April, 1874, George I. Stebbins,

since deceased, filed in the Probate Court of Jefferson County,
his bill of complaint, praying to be divorced from his wife,
349
Aurora Stebbins, the plaintiff in error, and alleging as grounds

therefor, willful desertion without reasonable cause.
Such proceedings were had that in the month of June fol

lowing, he obtained a decree granting the prayer of his bill
To reverse this decree the plaintiff in error, on the 8th day of
May, 187 9, sued out this writ of error.
A wire facias to hear errors, issued to Lucy J. Anthony as
administratrix of the estate of George I. Stebbins, deceased,

and as claiming to be the widow of said deceased. After the
issuance of the latter writ, the said Lucy J. Anthony died, and
the action has been revived against the present defendants in
error, Scott J. Anthony and George F. Stebbins, as the only
heirs-at-law of Lucy J. Anthony, deceased; the said Scott J.
Anthony being also administrator of the estate of said Lucy,

and likewise administrator dc bonis non of the estate of said
George I. Stebbins, deceased.

The rst assignment of error questions the jurisdiction of
the probate court to entertain an action for a divorce.
The point raised and relied upon by counsel for plaintiff in
error under this assignment is, that a. proceeding for a divorce

is not a matter of equitable cognizance, but is purely statu
tory as to right and remedy, and that jurisdiction over this
class of actions had not been specically conferred by statute
upon the court below.

While there are some adjudications to the effect that an ac
tion of divorce is a purely statutory proceeding, we think the
weight of authority opposed to this view; and that the juris
diction of the equity tribunals has generally been asserted
and maintained in this country in the absence of statutes as
well as under them.
Where statutes on the subject have been enacted, they usu

ally provide that the chancery practice shall be observed in
administering the law; and where divorces have been decreed

for causes without the statute, courts of equity have assumed
jurisdiction and afforded relief.

In support of the objection to the jurisdiction in equity,
350

where such jurisdiction is not specically authorized by statute,

it is suggested that in England, during the settlement of this
country, exclusive jurisdiction in matters of divorce vested in
the ecclesiastical courts; that chancery courts did not possess

this jurisdiction; hence it is argued that, before our chancery
courts can take cognizance of causes ecclesiastical, they must
have statutory authority.
This doctrine can be conceded only in cases where the grounds
or causes alleged may be purely canonical. Our chancery
courts would not be authorized to grant divorces for canonical
defects or impediments, as impotency, for example, unless it
was also made a ground of divorce by statute. But where the
grounds for which a separation may be decreed are xed by
statute, as in the present instance, the litigation is necessarily

one of equitable cognizance.
The authority of the equity tribunals has also been recog

nized in cases of marriage void on grounds of fraud, duress,
and lunacy, in the absence of statutory provisions by reason
of the inherent jurisdiction of equity over these subjects.
Fulton v. Fulton, 36 Miss. 519; Wightman v. TV/ig/ztman,
4Johns. Ch. 343;
C1-ump v. Morgan, 3 Iredells Eq. 91;
Ferlan v. Gojan. 1 Hop. Ch. 478; Clark v. Field, 13 Vt.

460; Form:/tell v. Ill/u'rray, 1 Blands Ch. 479, 483; 1 Bish
op on Mar. & Div. Secs. 71-77; 2 Bishop on Mar. & Div.

See. 291.
But it is not necessary in the present case to maintain that
a court having equity powers only, may, in the absence of ex
press authority, take cognizance of suits for divorce. By the
amendments to the organic act of March 2nd, 1863, the pro
bate courts, together with thc Supreme and district courts of
the Territory, were vested with both chancery and common law
jurisdiction, and with authority for the redress of all wrongs
committed against the laws of the Territory affecting persons

or property.
Two limitations were imposed by the act; one
relating to the several courts named, and the other aecting the
probate courts only.
The rst was that the jurisdiction of the
_ 351
several courts should be as limited by law; and the other pro
vided that the said probate court shall not have jurisdiction
in any matter in controversy where the debt or sum claimed
shall exceed the sum of two thousand dollars.
Theincreased jurisdiction conferred by this amendment was
extended to the Probate Court of Arapahoe County by the leg
islative act of February 9, 1870, and afterwards the same pro
visions were extended and made applicable to the Probate
Court of Je'erson County, by the act of January 31, 1872.
The act provides that: The Probate Court of the county
of Arapahoe, in this Territory, shall hereafter have concurrent
jurisdiction with the district courts of this Territory, in all

actions, suits, and proceedings whatsoever, as well at law as in
equity, when the debt or sum claimed, or the value of the
property, whether real, personal, or mixed, or all, or both, or
the matter or thing in controversy shall not exceed the sum of
two thousand dollars.
If the e'ect of this legislation was to make the jurisdiction

of the district and probate courts concurrent in all suits and
proceedings at law and in equity, except those suits and pro
ceedings which involved claims or property exceeding in value
the sum of two thousand dollars, there is nothing left for con
struction, and proceedings for divorce not complicated with
money or property claims exceeding the jurisdiction of the
court, are as much within the cognizance of the probate court
as of the district court.
'
T
If the jurisdiction does not exist, it is not for want of in
herent powers in the court to support it, but by reason of the
peculiar phraseology employed in the statute to express the
legislative will.
If the position were assumed and could be maintained, that
the concurrent jurisdiction conferred by the act was limited to
actions, the gist of which were money demands, and suits for
the recovery of or concerning property, a very different result
might follow.
A careful consideration of the statute, however, leads us to
CC
C21 [Q
SUPREME CoUR'r or CoLoRAno.

conclude that the aim of the legislature was to give full scope
and effect to the common law and chancery powers conferred
on this court by the act of Congress imposing no other or
greater restrictions thereon than those contained in the act it

self. This result necessarily and conclusively follows from the
words of the act conferring concurrent or joint and equal
jurisdiction in all actions, suits and proceedings whatsoever,
as well_at law as in equity.
The language of the statute is broad and comprehensive, in

dicating an intention to include in the concurrent jurisdiction
all and every species of actions and proceedings within the
limits imposed, which could be entertained by the district courts.
Had such not been the intention it is only reasonable to sup
pose that other limitations would have been imposed, or

that language would have been employed which would have
clearly conned the jurisdiction to actions concerning money
demands and property only.
Proceedings for divorce usually involve money and property

rights, and although ancillary to the main proceeding, yet the
value thereof, or the amount claimed as alimony, has been
made the test of urisdiction. Such was the case of (,7/uilal v.
Smith, 19 VVis. 558, which arose upon a statute very similar
to the one under consideration. The laws of 1860 conferred
upon the County Court of Milwaukee County, jurisdiction

in all civil actions, both as to matters of law and equity, equal
to, and commensurate and concurrent with the Circuit Court
of Milwaukee County * * * provided that the value of

the property, or the amount of money in controversy in any
action in said county court, exclusive of costs, do not exceed

twenty thousand dollars. An action for divorce being insti
tuted in the court under this statute, the county judge refused
to entertain it, basing his refusal upon a want of jurisdiction
to try and determine proceedings of that character. Upon
mandmnus to compel the judge to proceed to the trial of the
cause, the statute was held to vest the court with jurisdiction;
but as the complaint contained no averment of the amount
Daonmana TERM, 1880.
353
and value of the property involved, the peremptory writ was

denied.
Our own County Court act, passed since the adoption of the
State constitution, contains a clause that in all actions for
divorce, the petition, or bill of complaint, shall aver that the
plaintiff does not seek alimony in excess of the said sum of

two thousand dollars. Gen. Laws 1877, Ch. XXIII. Sec. 2.
Section one of this act, dening the jurisdiction of county

courts, is certainly not more comprehensive than the'corre
sponding section of the acts of 1870 and 1872. The phrase
ology is the same, and the language almost 'uerbatim; but for
the reference to actions for divorce in the second section, the
same doubt might arise as to the authority of the present
county courts to entertain such causes. This clause only aids
the statute by showing the understanding and intention of the
framers, for it contains no grant of jurisdiction, but on
the contrary, an express limitation upon the powers already
granted.
It should be borne in mind that this same statute couched
in almost the same phraseology has been repeatedly enacted,
and its provisions applied to different probate courts in the
late Territory, from the year 1864 up to the adoption of the
State constitution, and that the present county courts of the

State rely upon it for their jurisdiction. \Vhen to these con
siderations are added the additional 'facts that these courts
have entertained actions for divorce, and granted decrees there
for during a long term of years, and that under these decrees
new rights have sprung up, and new relations have been
formed, its validity should not be impeached upon technical

grounds merely.
Another objection urged against the jurisdiction of the
court below, is that the publication of notice to the defendant
of the pendency of the action was incomplete, the rst publica
tion not having been made thirty days before the return of the
summons.
Section 8 of the Chancery Act (R. S. 1868, Ch. 23), re

23
354
SUPREME Counr or Corounno.

Stebhins v. Anthony et a.1.
quires such publication to be made, for four successive weeks.

the rst of which shall be at least thirty days before the return
day of such summons.
The summons in this case was published for four consecu
tive weeks. The rst publication was on May 2d, 1874, and
the last on May 23d, 1874. The return day of the summons
was June 1st. If, therefore, either the day of the rst publi
cation, or the return day, which was the rst day of the
court, may be reckoned in the computation, the service was

complete.
The correct rule for computing time prescribed in statutory
enactments, has been a vexed question, both in England and
in this country, as is apparent from the conict of opinion in
the reported cases.
The rule of the common law, and the rule generally adopted
by the courts of the several States, is to include one day and
to exclude the other, some courts including the rst day in the
specied time in the computation, and excluding the last day.

Some courts exclude the rst day, and include the last. while
other courts vary their practice according to the phraseology
of the statute under consideration, in some instances includ
ing the last day, and in other cases excluding both days.
Our entire chancery act, which includes the section now
being considered, is almost a literal copy of Oh. 21 of the Re
vised Statutes of 1845, of the State of Illinois. And while
we nd no decision of that State construing this particular

section, yet similar provisions of other acts requiring the same
interpretation have been repeatedly construed, and a uniform
rule in that State adopted upon this subject.

In the ease of the publication of notice, the rule is to exclude
the day of publication and to include the rst day of the
court. In case of personal service, either of process or notice,
the day of service is excluded, and the return day, or the day
on which the act to be performed included.
In Varin v. Erlmon/lson, 5 Gilm. 270, the statute of 1833,
concerning the publication of notice in case of foreign attach
355
ment, was considered. The requirement was that the clerk

should give notice for four weeks successively in some news
paper published in the State most convenient to the place
where the court was held, etc., Provided, that in case of
foreign attachment, if sixty days shall not intervene between
the first insertion of such notice and the first day of court,
then the case shall be continued until the next term of court.
It will be observed that this is substantially the same re

quirement as that of our chancery act.
The first publication in that case was on the 27th dav of
May, and the court commenced on the 25th day of July.
Chief Justice Treat, speaking for the court, said: The proper
rule for the computation of time in such case is, to exclude
the day on which the notice was first inserted, and include the
day on which the term commenced.
This decision was made in 1848, and the same rule of con
struction was adhered to in the case of Forsythe v. Warren,

62 Ill. 68, decided in 1871.
In Bowman v. Wood, 41 Ill. 203, the third and fifth sec

tions of the Practice Act of that State, involving the same point,
were construed. The third section made it the duty of the

sheriff, when practicable, to serve all process ten days before
the return day thereof. The fifth section provided that if it
was not served ten days before the return day, it might be ex
ecuted at any time before or on that day, but in such case the
defendant would be entitled to a continuance, and should not
be compelled to plead before the next term.

The summons was served September 22d, returnable Oct.
2d. There being no appearance on part of defendant, a de
fault was entered October 4th. On the next day a motion
was made to set aside the default on the ground that the
service was not in time. Chief Justice Walker, in delivering

the opinion of the court, said: It is believed that the uni
form construction given to the Practice Act, has been to ex
clude either the day on which the summons was served or the
return day, and if there remained ten days, the service is held
356
SUPREME Couar OF COLORADO.

to be in proper time, and will sustain a judgment by default.

To hold otherwise would be to overturn the practice which
has obtained since the organization of the State government,
and to overthrow titles and judgments obtained on such ser
vice to an extent that is, perhaps, beyond calculation. We do
not see the slightest reason for a ditferent construction. The
computation in the mode which has obtained is so reasonable
and natural, as to require considerable ingenuity to make
another seem even plausible.
These several acts, the Chancery Act, the Attachment Act, and
the Practice Qzt were transcribed from the statutes of the
State of Illinois and incorporated into our statutes as early as
1861. Not only the provisions concerning the publication and
service of process, but the entire chapters on these subjects are
substantially verbal copies of those statutes. These chapters
were incorporated into our revision of 1868, and remained the
law of the Territory and State of Colorado until the adoption
of the Code in 1877. In adopting the laws of a sister State,
the general rule is that the legislature adopts also the settled
construction given those laws by the courts of such State, and
our legislature is presumed to have done so in these instances.
It is believed, also, that our courts have always given the
same construction to these several provisions, and observed the
same rule of computation adopted by the courts of Illinois_
Consequently the same reasons existhere as there for adhering

to the precedents. No distinction was made there, nor the rule
of construction varied on account of differences of phraseology

in the various acts. The same rule was applied whether the
requirement was as in the Chancery Act (R. S. 18-15, Ch. 21,
Sec. 8), that the rst insertion of notice, shall be at least
sixty days before the return day of such summons, or as in
the Attachment Act (ib. Ch. 9, Sec. 13), if sixty days shall
not intervene between the rst insertion of such notice, and
the rst term of court, then the cause shall be continued
until the next term of court; or, as in the Practice Act (ib: Ch
83, Secs. 3 and 5), which requires all process to be served ten
-A
357
Stebbins v. Anthony et a.l
days before the return day thereof, and provides that if not so
served the defendant shall be entitled to a continuance.
The same general rule obtains in the courts of the States
of Maryland, New York, New Jersey, Mississippi, Ala
bama, Pennsylvania, and in the Supreme Court of the

United States. In the three courts last mentioned the rule
appears to be to treat the day from which the term is to be
calculated, that is, the rst day, as inclusive. Garner v.
Johnson, 22 Ala. 494; Thomas v. Ajliclc, 16 Pa. St. 14;
Grzjth v. Bogart, 18 How. 158, 163.
The return day, or rst day of court, is included by the
courts of Illinois, Mississippi and New York.
Vari/n, v.
Edmonson, 5 Gilm. 270; Bowman v. Wood, 41 Ill. 203;
Forsyt/t v. Warren, 62 Ill. 68; Douglass v. Uassedy, 25 Miss.

48; Columbus Turnpi/ce Co. v. Haywood, 10 Wend. 423.
The Courts of Maryland and New Jersey appear to include
one day and exclude the other, without particularly specifying
which. Walsh v. Boyle, 30 Md. 262; Den v. Fen, 3 Halst.

303; Day v. Hall, 7 Halst. 204.
It is contended on behalf of plaintiff in error that our
statute must be construed to give thirty clea/r days between

the day of the rst publication and the return day of the
writ, because the requirement is, that the rst publication
shall be at least thirty days before the return day of the

summons.
In support of this position, among other cases, we are cited
to the case of Small v. Edrick, 5 Weud. 138.
This case con
strued a statutory provision respecting a notice of trial, which

was, that written notice of trial of every issue shall, in all
cases, be served at least fourteen days before the rst day of
'1
the court at which such trial is intended to be had. The court

refer to and admit the general rule of' law, that in the compu
tation of time relating to the service of papers, one day is in
clusive and the other exclusive, and say such has been their
ruling; but that in this instance arule of court excludes the
day of service, and the statute excludes the rst day of court,
358

so that both days must be excluded. No point is made

on the words at least, and they are not referred to in the
opinion.
This case is distinguished from the case of Columbus Turn

Pike Co. v. Haywood, supra, where a different ruling was
made on account of a slight difference in the phraseology of
the statutes under which the two cases arose.
In case of the
Turnpike Co. the statute required a summons in a justice's

court to be served at least six days before the time of appear
ance. In the former case the requirement was that notice of
the trial of every issue should be served at least fourteen
days before the first day of the court. In the case of the
summons in the justice's court, it was held that the return
day of the writ was properly included in the computation of
the six days; whereas, the return day, or first day of court, was
excluded in case of the notice.
An opportunity was offered the Supreme Court of Pennsyl

vania to make an equally fine distinction on this point.
In Thomas v. Afflick, supra, the provision that no writ
should be sued out, or served on a justice of the peace, until
notice in writing given him at least thirty days before the
suing out or serving the same, it was held that the day on
which the notice was served should be included in the computa
tion. The court admitted that the ruling was in conflict with a
former decision (Goswiler's Estate, 3 Pa. 200) and remarked:
We might plausibly distinguish it from Goswiler's appeal, on
on the ground of a difference between an act to be done before
the expiration of so many days, and an act to be done after it;
but the distinction would be a shadowy one.
The conclusion
reached was that the decision in Goswiler's appeal was not

well considered.
Early v. Doe, 16 How. 615, was the case of a tax sale. The
language of the statute in respect to notice was: That public
notice of the time and place of the sale * * * shall be given
hereafter by advertisement inserted in some newspaper pub
lished in said city once in each week, for at least twelve suc
IDECEMBER TERM, 1880.
359
cessive weeks.
The question considered was whether twelve
insertions, in successive weeks, was sufficient notice without re
spect to the number of days in twelve weeks, and it was held

that the language employed in the statute meant that the no
tice must cover eighty-four days. The notice was published
twelve times in twelve successive weeks, the first insertion be
ing on Saturday, August 26th, and the last insertion Novem

ber 15th, the day of sale. The court say that a notice of eighty
two days was given, including both days, and intimate that a
sale on the 17th of November instead of the 15th would have
been valid.
It will be seen, however, that if the day of the first insertion

be excluded, and that of the last included, the notice covered
but eighty-one days.
By the usual rule of computation, the
sale should have been made on the 18th of November.

The rule laid down by the same court in Griffith v. Bogert,
18 How. 158, and which it mentions as the general and pop
ular usage, is to treat the day from which the term is to be
calculated, or terminus a quo, as inclusive.

The opinion in Fairbanks v. Wood, 17 Wend. 329, does not
conflict upon this point with the rule adopted in 10 Wend. 423,
but cites the latter as authority.
The point decided in Walsh v. Doyle, 30 Md. 262, was what

constituted one day's notice. It was the construction of an
order of court which allowed each party to take testimony up
on giving one day's notice. Notice had been served on the
28th of December, and the testimony taken on the 29th. The
court held the notice sufficient, and properly so held, as it was
one day exclusive and one inclusive.
In discussing the question, the court cite the case of King
v. Justices, 3 Barn. & Ald. 581, as authority for the rule that
when a statute or rule of court requires notice to be given of a
certain number of clear days, both the day on which the no

tice is served and the day of the proceeding must be excluded.
It also referred to the case of The Queen v. The Justices, 8
Adol. & El. 173, where it was held that a statute requiring
360
SUPREME CourT OF ColoRADo.

fourteen days at least, means fourteen clear days.
But as
Walsh v. Doyle involved no such points as these, it cannot be

regarded as an authority for these propositions or rules.
The cases of Beemis v. Leonard, 118 Mass. 502, Sheets v.
Selden, 2 Wallace, 190, and Good v. Webb, 52 Ala. 452, do not
appear to be in conflict with what we understand to be the

: general current of modern authority upon this question, which
is, that where a statute requires an act to be performed a cer
tain number of days prior to a day named, or within a defi
nite period after a day or event specified; or where time is to
be computed either prior to a day named, or subsequent to a
day named, the usual rule of computation is to exclude one
day of the designated period, and to include the other.
The point raised that the words at least prefixed to the
number of days specified in a statute have the effect to require
full, clear days, is not sustained by the weight of authority.
An examination of the cases cited, discloses the fact that
many of them involve the construction of statutes which in
clude these words, and that such statutes have been interpreted
as if the words had been omitted. And in the case of The Queen,
v. The Justices, 8 Adol. & El. 173, where it was held that
fourteen days at least, mean fourteen clear days, the ruling

appears to have been regretted by the judges who made it,
Littledale, J., saying: We abide by what has already been
decided, though it appears to me that a day is a day, whether
at least be added or left out. Coleridge, J., concurred in the
decision, addingbut on principle I should be of a different
opinion.
The courts of Georgia, Texas, some of the New York cases,
several English decisions, and possibly other cases, conflict
with the rule which we adopt, but we think it sufficiently sul
ported by authority, and that it is correct on principle.
The first publication, therefore, was in time, and the service
was complete.
The objection to the sufficiency of the proof of the charges

contained in the bill are based upon two propositions, first,
361
that the complainant was not a competent witness in the cause;

second, that if competent, he did not testify to facts showing
such desertion by the plaintiff in error as warrant the decree of
divorce.
The first proposition requires a construction of sections 1

and 5 of the act of February 11, 1870, entitled An act relat
ing to the competency of witnesses in civil cases.
Section 1 provides that no person shall be disqualified as a
witness in any civil action, suit or proceeding, except as here
inafter stated, by reason of his or her interest in the event
thereof as a party or otherwise, or by reason of his or her con
viction of any crime, but such interest or conviction may be
shown for the purpose of affecting the credibility of such wit
ness, etc.
Section 5 provides that no husband or wife shall, by virtue

of section one of this act, be rendered competent to testify for
or against each other as to any transaction or conversation

occurring during the marriage, whether called as a witness
during the existence of the marriage or after its dissolution,
except in cases where the wife would, if unmarried, be plaintiff
or defendant, or where the cause of action grows out of per
sonal wrong or injury done by one to the other, or grows out
of the neglect of the husband to furnish the wife with a suit
able support; and except, also, in cases where the litigation
shall be concerning the separate property of the wife, in all
of which cases the husband and wife may testify for and
against each other in the same manner as other parties may
under the provisions of this act.
On behalf of plaintiff in error, it is contended that, so far
as the present action is concerned, our statute does not change
the common law in respect to the competency of husbands and
wives as witnesses for or against each other.
The first section is substantially the same as Sec. 1 of Wag
ner's Statutes of Mo. p. 1372, which was construed to render
husband and wife competent witnesses, when they are the
opposing parties to a suit, to give evidence of matters not
362
SUPREME COURT or Conoa/mo.

.
cominr nicated by one to the other, such communications be
ing excluded by other provisions of the statute on grounds of

public policy.
In construing this section the court say, in 1]!oore v. Mowe,
51 Mo. 118: The language used is broad enough to embrace

all persons who are parties to a suit, including husband and
wife. This opinion was atlirmed in Berlin v. Berlin, 52

Mo. 151, wherein the following views were expressed in re
spect to the legal effect and design of this section: It is
true that husband and wife eo nomine, are not mentioned in
Sec. 1 of the act respecting witnesses; but it would seem that

a fair and reasonable construction would embrace them within
its provisions. The act in question was evidently designed to
work a complete change in the law of evidence, and to lay its
foundations anew, not on the theory of the common la\v, that of
human inrmity, but in the sanction of truth, probity, and
personal honor? These rulings were afterwards cited with

approval in the cases of Paul v. Lea-uitt. 53 Mo. 595, and
Darrier v. Darrier, 58 Mo. 222.
We have been referred, by counsel for plaintiff in error, to
several decisions which announce a contrary doctrine, but only
one of them appears to be founded upon statutory provisions
in anywise similar to either our own statute or that of Missouri.
The case of Gee v. Scott, 48 Texas, 510, holds that the act
of May 10, 1871, of that State, declaring that in the courts of
the State there shall be no exclusion of any witness in civil

actions, because he or she may be a party to or interested in
the issue to be tried, does not render the husband and wife
competent as witnesses for or against each other.
The argument of the court is, that such testimony was ex
cluded at common law on the ground of public policy, as well
as upon the ground of interest, and that the statute is not

broad enough to rem_ove the disability grounded upon consid
erations of public policy in the case of husband and wife.
This, however, was not an action between husband and wife
as adverse parties, but a trial of the rights of property in cer
Dncnmsna TERM, 1880.
363
tain goods claimed by the wife, as plainti, against a stranger,

the husband being offered as a witness in behalf of the wife.
The case is therefore not clearly in point, for in the construc
tion of the Missouri statute it was held on the ground of pub
lic policy also, that husband and wife were incompetent to tes
tify for or against each other where they were not the oppos
ing parties in an action, except in certain cases specied in the

statute; and that as to all other cases the common law rules of
evidence prevailed.
See Moore v. Moore, supra.
In the case of our statute, there is less room for construction

than in either of the acts referred to. The question whether
the principal section declaring who shall be competent wit

nesses in a cause, was designed to include husband and wife,
has not been left entirely open for
udicial interpretation.
The legislature has placed its own construction upon this sec
tion, by the enactment of section ve, of the same act. The
latter section not only informs us that such persons were in

cluded, but proceeds to limit the rights and privileges therein
granted to husband and wife to specied classes of cases,

among which is enumerated the class now under consideration,
viz: Where the cause of action grows out of a personal
wrong or injury done by one to the other.

The suggestion of counsel that desertion is not a personal
wrong or injury within the meaning of the act, and that only
corporal injuries, as assaults, were contemplated, will not bear
discussion.
It is difcult to conceive of a more grievous per
sonal wrong, capable of being committed by one of the parties

to this sacred compact against the other than an act which is
wholly destructive of the aims and purposes of the marriage
relation.
cause.
Such an act is willful desertion, without reasonable
That it was the design of the legislature to effect a
radical change in the common law rules of evidence in respect

to such cases as this, is clear, and it therefore becomes our du
ty to give effect to the law.
In respect to the testimony in this case, it certainly deserves
the caustic criticism given it by the able counsel for the plain
tiff in error. In an action of this character, and especially in
384
SUPREME COURT or Cononsno.

case of a default, it is the duty of the court to make careful in

quiry into all the facts and circumstances connected with the
subject-matter of the complaint, and before granting the re
lief prayed for, clear and satisfactory proof should be required
of the charges made in the bill.
But, while the proof is some
what meagre, we cannot say, upon a review of the whole case,

that it is insufficient to support the decree. or that the court
below abused its discretion in pronouncing the decree of

divorce. The parties had been married nineteen years and a
half at the time of the ling of the bill, and the desertion
charged had, at that date, been persisted in for thirteen years.
The testimony of the husband is that for this length of time
the plaintiff in error had absented herself from his habitation,
and still persisted in such conduct. I-Ie testied that he had
always been kind and affectionate toward her, and provided
her with all the necessaries and comforts of life, but that she
had for that length of time willfully and without reasonable

cause refused to live with him. He swore that he frequently
requested her to return, and sent her money, but she refused
so to do. The intimation of counsel that this testimony may

be untrue, and that there may have been just cause for the
desertion complained of, cannot avail; there are no such inti
mations in the record.

Nor can we regard the delay in prosecuting this writ as
favorable to the cause of plaintiff in error. The ve years

allowed for prosecuting such writ had almost elapsed when the
writ was sued out. In the meantime, the plaintiff below had
contracted another marriage, and was then in his grave; as

was also the wife of that marriage, before service of said writ.
Such cases are entitled to receive just such indulgence at the
hands of courts as the strict rules of law require, and no more.
\Ve are unable to perceive from the record, that the law has
been violated to the injury of the plaintiff in error, and must
therefore airm the decree.
Decree ajirmed.
Chief Justice ELBERT being absent, did not participate in this

decision.
365
Smith et al. v. Londoner.
SMITH ET AL. v. LONDONER.

1. Under a statute providing that all stockholders of corporations shall be
individually liable'to the creditors of the company to the amount of unpaid
stock held by them (Rev. Stat. Col. Chap. 18, Sec. 12), a creditor may main
tain an action at law against an individual stockholder, and recover to the
amount of unpaid stock held by him.
2. That the creditor who sues is also a stockholder in the company, does
not, under the statute, make any difference, provided he has paid in full for
the stock held by him, and consequently is not individually liable for the debts
of the company.
Error to District Court of Arapa/we County.

Turs was an action brought to charge the defendant as a
stockholder in the Cottage Grove Association, an alleged cor
poration, under section twelve, chapter eighteen of the Revised
Statutes of 1868. Both the plaintiffs and defendant were
stockholders in the alleged corporation. Judgment of non
suit was entered in the court below.
Messrs. BUTLER, Wmonr and Kmo, for plaintiffs in error.
Messrs. MILLER & Cnonen, for defendants in error.
B10011, J. Two principal questions are presented by this rec

ord : First, can one of the creditors of a corporation organized
under chapter 18, R. S., maintain an action at law for the re
covery of his individual claim against a stockholder who is

indebted for his stock?
Second, can a stockholder who is a
creditor of such corporation, but who has paid in full for the
stock subscribed by him, maintain such action?
Section twelve of the act provides as follows:

All the stockholders of every company incorporated under
the provisions of this article, shall be severally individually

liable to the creditors of the company in which they are stock
holders, to the amount of unpaid stock held by them respect
366

ively, for all debts and contracts made by such company, until
the whole amount of capital stock xed and limited shall be
paid in, and a certicate thereof shall have been made and
recorded as prescribed in the following sections, and the capital
stock so xed and limited shall all be paid in, one-half thereof
within one year, and the other half thereof within ve years
from the incorporation, or said corporation shall be dissolved.
Upon the rst question, cases are cited for defendant in
error, which hold that the action must be an equitable pro
ceeding on behalf of_ all creditors, and that the corporation
must be made a party thereto, and if so required by a defend
ant stockholder, all the individual stockholders must likewise
be joined as co-defendants.
In respect to these authorities, it
may be remarked that they are based upon statutory provis

ions dissimilar to our own.
_
Section twelve of our statute is substantially the same, so
far as this question is concerned, as the ninth section of the
act of February 18, 1857, of the State of I_llinois.
The pro
visions of that section are as follows: All the stockholders

of every such company shall be severally individually liable to
the creditors of the company, to an amount equal to the
amount of stock held by them respectively, for all debts and
contracts made by such company prior to the time when
the whole amount of its capital stock shall have been paid
in, and a certicate thereof made and led as hereinafter re
quired.
Under this act a stockholder is made liable to the extent of
the stock held by him; whereas, our act restricts his individ
nal liability to the amount of unpaekl stock held by him.
The Illinois statute was carefully considered and construed
in the case of Culver v. T/mini 1Vatz'0nal Bank qf Chicago,

6-L Ills. 528, in which it was held that an action at law may be
maintained by a single creditor against a single stockholder,

and that the corporation is not a necessary party; that each
stockholder is primarily liable to the creditors of the company,
to the extent of his stock.
DE('EMBER TERM, 1880.
3137
To the same effect is the case of Butler v. Wallrer, S0 Ills.

3-15. This was an action at law by the holder of a policy of
insurance, against a stockholder of the company, to recover for
a loss sustained by re.
The provisions of the charter, together with those of a sub

sequent act of the legislature, which was held to operate as an
amendment of previous charters, imposed similar liabilities
upon the stockholders of insurance companies, as did the act of

1857 upon the stockholders of companies formed for manu
facturing, mining, mechanical or chemical purposes. A de
murrer was sustained to the declaration below, but the Su
preme Oourt held that the stockholder was liable in that form
of action, at the suit of a creditor, to the amount of _his stock
in the company.
We regard these cases as conclusive of the rst question.

Our Territorial statute will bear the.same construction.
The next inquiry is more difficult : Can a stockholder who
is a creditor, but who has paid in full for his stock, maintain
such action? No adjudication applicable to the provisions ot
our statute has been cited on this point.
In the case of Bailey v. Bancker, 3 Hill, 188, it was held
that the remedy to proceed against individual members of the
corporation named was designed only for the benet of out
side creditors. This ruling was based upon a construction of
the following provision in the charter, viz.: The stockholders
of the said corporation shall be jointly and severally liable for
the payment of all debts or demands contracted by the said cor

poration. The court held that the charter placed\the stockhold
ers on the same footing, in respect to the liabilities of the cor
poration, as if they had not been incorporated, and that it made
them answerable as partners.
It was further held,-that to ex
tend the above provision t_o a stockholder who had a demand
against the corporation, would involve the following absurd
consequences:
First, the stockholders being jointly liable
for all demands, such a construction would authorize a stock
holder to sue himself.
Secondly, if he proceeded under the
368

several liability clause to obtain satisfaction of his claim from

another stockholder, the latter in turn would become a credit
or of the corporation, and would have the same right to sue
for and collect his demand from some other stockholder, and so
on, to the end of the list.
To the same effect are the cases of Andrews v. J1um-ay, 33

Barb. 354, and Richardson v. Abendroth, 43 ib. 162.
The same principles were recognized in T/mg/er v. Union
Tool O0. 4 Grey, 75. Stockholders, under the statute, were
jointly and severally liable for the debts of the corporation in
certain contingencies, and the statute provided that the per
sons or property of stockholders liable for such debts might
be taken therefor on any writ of attachment or execution
issued against the company for such debt, in the same man
ner as on writs of execution issued against them for their in
dividual debts.
.
The question considered by the court in this case was,

whether a creditor, who was also a stockholder, individually
liable for the debts of the corporation, could attach on mesne
process, or levy his execution upon property of other mem
bers, also liable for the debts of the corporation.
It was held
that he could not, and that this remedy was intended wholly
for outside creditors.
This conclusion was arrived at from a consideration of
other portions of the statute. Provision was made therein for
a stockholder who had been compelled to pay adebt of the
company. Two remedies were afforded: One, by an action
on the case against the company, to recover back the amount
paid; the other, a bill in equity for contribution against one or
more stockholders, originally liable with him for the payment
of the debt. This statute was interpreted as intending to put
all stockholders upon an equal footing, and having provided
the aforesaid remedies for those whose property had been
seized to pay debts of the corporation, it was considered that
it was not intended to give a more eicient remedy to mem

bers who had voluntarily become creditors of the company
___
____
__
369
than to those who involuntarily became creditors by being

compelled to pay its debts.
All the cases cited by counsel for defendant in error, arose
upon statutes wholly different from our own in respect to the
liability of members of the corporation. By the provisions of
the act under which the Cottage Grove Association was organ
ized, the measure of a stockholders liability was his personal
indebtedness to the corporation upon his stock subscription.
Payment of the subscription either to the corporation, or in

satisfaction of the judgment of a creditor, canceled the liability,
and although still a member and stockholder, he was thereafter
free from any personal liability for debts of the company. No
such statutory provision existed in any of the cases cited. In
Baily v. Bancker, the stockholders were jointly and severally

liable for the payment of all debts contracted by the corpora
tion.
In T/layer v. Fnion Tool 00., the stockholders were jointly

and severally liable, in certain contingencies, for the debts of
the corporation.
In Andrews v. Murray, the statute made the trustees of a

corporation jointly and severally liable for the debts of the
company, in case of their neglect to make and le the report
mentioned in the act, and the question considered in that case

was, whether a trustee, who was a creditor of the corporation,
could sue aco-trustee and recover, all the trustees being liable in
such case under the statute. The plaintiff being himself liable
for such debts, it was held he could not maintain the action.
The case of Ric/uzrdson v. Abendrot/2., presented the ques

tion whether the secretary of the corporation, who was like
wise a stockholder, could recover for his services rendered as
secretary, in a suit against another stockholder. The statute

under which this action was instituted, made the stockholders
of the corporation individually liable for debts due to their
laborers, servants and apprentices, for services performed for
such corporation. It was held that he could not recover, be
cause he was himself equally liable with the other stockholders

2-1
370
SUPREME Court of ColoRADo.

for this class of debts.
If he recovered from a stockholder, he
would immediately become liable to said stockholder, with

other members of the company, to contribution.
Larabee v. Baldwin, 35 Cal. 155, was upon a statute which
made each stockholder liable for his proportion of all debts

contracted after he became a stockholder.
In Umsted v. Buskirk, 17 Ohio St. 114, the statute made

the stockholders liable to an amount equal to the stock sub
scribed by each, in addition to their stock, for the security of
the creditors.
After a careful consideration of these cases, we are forced to
the conclusion that they throw no light upon the question under
consideration. There being no similarity or analogy between
our statute and the statutes under which the above cited cases
arose, it is obvious that these adjudications can afford no aid in

the interpretation of the act in question. None of the reasons
assigned in these cases for the rulings made, are applicable in
the case at bar. The plaintiffs in this case are not liable for
this class of debts. In no event can they become liable to
contribution with other stockholders therefor. Having paid
for their stock in full at the time of their subscription, they
are not personally liable, either to creditors of the incorpora
tion or to other stockholders. No element of partnership lia

bility attaches to them under this statute.
If the action be sustained, and the defendant in error be
compelled to pay the claim, such payment does not constitute

him a creditor of the association, or entitle him to contribution
from the plaintiff, for in the payment of the judgment he is
liquidating his own indebtedness to the company. And lastly,

no absurd consequences result from a construction of the stat
ute which places a creditor, who is at the same time a stock
holder, but who is under no individual liability either to the
corporation or to its creditors, upon an equal footing with
outside creditors.
Nor is it perceived why the same form of action is not as

effectual in the one case as the other.
The cases cited, which
371
Union Colony et al. v. Elliott.
hold that relief can only be obtained in equity, resting as they

do upon dissimilar statutory provisions, cannot be considered
as authority upon this point.
The proposition that the remedy provided for creditors of
corporations by Sec. 12, R. S. 1868, was repealed by Chap.
XIX, General Laws, 1877, cannot be maintained in this case.
Upon this point it is sufficient to say, that it is obvious from

an inspection of the provisions of Chap. XIX, that the legis
lature did not intend to interfere with actions pending for the
enforcement of rights alleged to have accrued under the former

act.
These are the only points growing out of the judgment of

non-suit which we deem necessary to consider. The action
being maintainable in its present form, the defense thereto
must be upon the merits. The judgment is reversed, and the

cause remanded.
Judgment reversed.
Chief Justice ELBERT, being absent, did not participate in
this decision.
THE UNION CoIONY OF COLORADo ET AL. v. VICTOR
A. ELLIOTT, Judge of the District Court, etc.

The proper function of the writ of mandamus is merely to set in motion.
It will therefore in a proper case be allowed to command action, but never
to control discretion.
PETITION for writ of mandamus.
Messrs. WELLs, SMITH & MACON, for petitioners.

Hon. VICTOR A. ELLIOTT, prose.
Messrs. B. M. & C. J. HUGHES, Messrs. DIxoN & REED, and
Mr. H. P. H. BROMwFLL, of counsel for respondent.
372
SUPREME Cooar or Cor.-onano.

BECK, J.
The petition for the awarding of the writ of man
damus in this ease, sets out that the petitioners are corpora
tions, doing business in Weld county, and that they are owners
of and interested in ditches, appropriating water from the
Cache-la-Poudre river, in water district N0. 3. It states that
a referee was appointed to take testimony in said water dis
trict, under the provisions of the irrigation act of February 19,
1879; that due notice was given, and the testimony ot' all
persons attending was taken, as required by the act, and duly
returned by the referee. That thereafter two several applica
tions were made to the Hon. Victor A. Elliott, judge of the
Second Judicial District of the State, wi thin which said county
and water district are situated, to make necessary orders and
rules for carrying out the intent of the act and for a hearing
and decree under its provisions. The petition also sets out the
rules made by the judge in the premises, and avers that the
intent of the act cannot be carried out under the rules so made,
and that they require pleadings and actions not contemplated

by the act, and that they are without authority of law, and are
in contravention of the spirit and meaning of the statute.

The prayer of the petition is that a writ of mandamus issue
to said judge, commanding him to make and promulgate such
rules as to him may seem necessary and expedient for carry
ing out the intent of the act, etc., also all orders and rules nec
essary and proper for the regulation of the hearing, adjudicat

ing, and settling of all questions concerning the priority of
appropriation of water between ditch -companies and the
owners of ditches drawing water for irrigation purposes, from
the Cache-la-Poudre river or its tributaries, within water dis
trict No. 3; for the giving of notice to all concerned of the
time and place of hearing; that he appoint an early day for
the hearing, and that on the day appointed he examine the
testimony taken and reported by the referee, and upon it enter
a decree determining the several priorities of the several
ditches and reservoirs concerning which testimony was offered
before the referee, with the amount of water each shall be held
to have appropriated.
~~
Dsosmsna TERM, 1880. '
373
To this petition a demurrer has been interposed questioning

its suiciency in law to authorize the relief prayed for.
The rules and principles of law governing the exercise of
jurisdiction by mandamus appear to be pretty well settled in
the books, but much diieulty is frequently experienced in the
application of these principles and rules to cases arising in the
courts wherein the exercise of this extraordinary jurisdiction

is invoked. Perhaps this is more especially the case where
the person against whom the writ is prayed is invested with a
discretion as to the act or duty to be performed.

Some of the general principles controlling the issuing of the
writ and the jurisdiction by mandamus are, that if a judicial
ofcer refuses to act in the performance of an ofcial duty, the
writ will issue to compel action, and the exercise of oicial dis
cretion or judgment, but the mandate will contain no direction
as to the n1anner in which the duty shall be performed. The

proper function of the writ is merely to set in motion. It will
therefore, in a proper case, be allowed to command action, but
never to control discretion. To warrant relief by this means
the right must be clearly established, for the writ never issues
in doubtful cases, nor where, if issued, it would prove unavail
ing; there must be no other adequate legal remedy, and in no
case will it issue where it appears that the oicial discretion
has been exercised, unless it be made to appear that there has
been an abuse of the discretion, or that it has not been exer
cised in accordance with law. Nor will it lie in all cases, for the
cause that parties have no other legal remedy.
High on Ex.
Leg. Rem. Secs. 5-24, and authorities there cited. It has been
further held that where subordinate courts have acted judi

cially upon matters properly presented, their decisions, whether
right or wrong, can not be altered or controlled by mandamus.

Ibid, Sec. 156. and cases cited: Em parts Hoyt, 13 Pet. 279.
We understand the petitioners and their counsel to be of

opinion that the district udge, under an erroneous view of the
statute, has prescribed rules in violation of its spirit and intent,
and that his action in the premises is wholly outside his judi
j_"
~i
<2:

cial discretion, and that these rules impose conditions and
hardships upon those desirous of having their rights adjudi

cated not warranted by the statute. From this view of the
case the inference is drawn that the discretion to make neces
sary rules and orders to govern proceedings under the act in
question has not been exercised at all; and that the neglect or
refusal of the judge to adjudicate the rights of the petitioners,

until a compliance on their part with the rules made is tanta
mount to a. refusal to act upon a preliminary objection, which
is purely a matter of law, and as to which the judge has mis
construed the law.
It has been held that where a duty is enjoined to, be per
formed with discretion, the discretion can not be exercised
arbitrarily, but must be exercised for the public good; and that
where a discretion is abused, and made to work injustice, it is
admissible that it be controlled by mandamus. Tapping on
Mandamus, p. 66; Village Qf Glencoe v. The People, 78 Ill.

382.
It was held in Castello v. St. Louis Circuit Court, 28 Mo.

259, that where an inferior judicial tribunal declines to hear a
case upon what is termed a preliminary objection, and that
objection is purely a. mutter of law, a mandamus will go if the
inferior court has misconstrued the law. Several English au
thorities are cited in support of this principle, among them
the case of The King v. The Jmtices qf the First R-id2'n_q
of Yorkshire, 5 Barn. & Adol. 667.

Castello brought an action in the circuit court to contest
his right to the oice of sheriff of St. Louis county. The cir
cuit court refused to try the cause, and struck it from the docket,
on the ground that legal notice of the contest had not been
given within the time prescribed by statute.
In respect to the notice given,Justice Napton, in delivering

the opinion of the court, says: If the circuit court declined
to go into the merits of the case because the party complaining
had not given the notice required by the statute, that was a
preliminary objection upon a point of law which this court can
375
review upon a writ of mandamus; and if the circuit court called

for a notice which the statute did not require, the mandamus
ought to be made peremptory. But the court being satisfied
of the insufficiency of the notice, and of the correctness of the
ruling below, denied the writ.

Justice Scott concurred in the conclusion, but denied the cor
rectness of the reasoning.
He held that it was the official duty
of the judge to pass upon the sufficiency of the statutory no

tice required in such cases, and that it was wholly immaterial
whether the court was wrong or right as to the point of law
involved, for when it had proceeded so far as to determine that
legal notice had not been given, the controversy was determined,
and determined on its legal merits. The right of contest was
upon condition that a prescribed notice be given within a cer
tain time after the official count should be declared.
If this
notice had not been given, it would be futile for the contestant
to prove that he had received a majority of the votes cast at
the election.
The justice also denied the application to that case of the

rule announced by the court, to wit: that where a judicial tri
bunal declines to hear a case upon a preliminary objection
which is purely matter of law, a mandamus will go if the infe.
rior tribunal has misconstrued the law. He held that the ap
propriate remedy, if any, in such case, was by appeal or writ
of error; and if neither would lie, it was because the statute
made the action of the circuit court final.
In support of his
views, Justice Scott referred to the case in 5 Barn. and Adol.
supra, cited in the opinion of the court.

There was an appeal to the quarter sessions. The statute
required ten days notice prior to the next sessions, which was
duly given. When the time arrived, the appellant moved that
the appeal be respited to the next quarter sessions, which was
granted. When the appeal was called on at the sessions to
which it had been continued, appellant was called upon to
prove his notice of appeal to the respited sessions. No such
notice having been considered necessary, or given, his appeal
376

was dismissed. Upon an application to the Kings Bench for a

mandamus to compel the court of quarter sessions to re-instate
and try the appeal, the writ was ordered to issue, on the
ground that notice of a respited appeal was not required by

any rule of law or any rule of practice at the sessions, and that
the court had no authority to exact it from the appellant. All
the judges were agreed that if the dismissal had been based
upon the original notice of appeal, which was prescribed-by
statute, they would not interfere. This case appears to support
the views of Justice Scott in respect to the distinction between
points preliminary, so called, and likewise the distinction
which the law makes in respect to the rulings thereon. Wliere
the point involves a rule of law or rule of court, and likewise
a question of fact which may go to the legal merits of the con

troversy, the decision is within the discretion of the court,
and, if erroneous, cannot be controlled by mandamus. But it
is otherwise if the court require an act to be done or proof to
be made before proceeding to the merits, which is not required
by any rule of law, of practice, or rule of the court, and which
imposes unnecessary hardship on a party.
It is said in Tapping on Mandamus, p. 158, that the court
will, by mandamus, command all inferior jurisdictions to hear
a case in the rst instance, and will oblige them to do whatever
is incidentally necessary to such hearing, but will not prescribe
the mode of hearing and determination. It is further said that
the Court of Kings Bench will not interfere to regulate the

practice of the inferior court, it being the sole judge of its
own practice; but where the practice is contrary to law, the
court will not sanction it, and therefore, will award a man
damus.
In Ea: parte Whitney, 13 Pet. 404, it was alleged in the
petition for a mandamus to the Circuit Court of the Eastern
District of Louisiana, in which the petitioners bill in equity
was then pending, that it is understood to be the settled deter
mination of the district judge not to suffer chancery practice
to prevail in the circuit court; that her right to proceed in
37 7
her suit has been denied until she shall cause copies of her
bill in the French language to be served upon the defendants,
or some of them, and until she shall le documents which are
not made exhibits in the cause; and then that all further pro
ceedings in the case shall be in conformity with the existing
practice of the court, which existing practice is understood to
mean the practice prevailing in the court in civil cases gen
erally, in disregard of the rules established by the Supreme
Court, to be observed in chancery cases.
Judge Story in denying the application, held that it was the
duty of the circuit court to proceed in the suit according to the
rules prescribed by the Supreme Court for proceedings in equity
cases; and while-the proceedings of the circuit court, and the
orders made in the cause were not in conformity with those rules,
and with the chancery practice, yet the question was not as to
the regularity and propriety of those proceedings, but whether
in that case a mandamus ought to issue. He concludes as
follows: And we are of opinion that it is not such a case.
The district judge is proceeding in the cause, however irregu
lar that proceeding may be deemed, and the appropriate re
dress, if any, is to be obtained by an appeal after the nal de
cree shall be had in the cause. A writ of mandamus is not
the appropriate remedy for any orders which may be made in
a cause by the judge in the exercise of his authority, although
they may seem to bear harshly and oppressively upon a party.
The remedy in such case must be sought in some other form.
From a consideration of the foregoing, and many other
authorities, including the legislative act in question, we de
duce as applicable to the present case, the following conclu
sions of law: The district judge being clothed by the statute
with authority to make any and all orders and rules which
may be necessary and expedient for carrying out the intent of
the act, as well touching the proceeding in court as in respect
to other matters specied, he is vested with a very broad dis
cretion in the framing of such rules and orders. He is re

quired to act judicially in the making of these rules and orders,
OJ ~i
G2
and his judgment and discretion alone are tobe exercised in

their creation. If he acts in good faith and within the limits
of the powers conferred, so that the purposes of the act can
be executed under the rules made, his action, however irregu

lar, erroneous or unwise, cannot be reviewed in this manner.
And if he hold himself in readiness to proceed under the rules

made, and execute the act, mandamus will not lie.
To authorize the writ in such case, it must either be made
to appear that the judge or court has refused to proceel under

the law, or that the action taken is such a clear abuse of dis
cretion, and violation of the spirit and intent of the statute as

to amount to a refusal to proceed, and a denial of justice.
I am aware that the counsel for petitioners contend that they

have presen'ed just such a case in their petition. This must
be determined by a consideration of the statute, the acts to be
performed by virtue of its provisions, the authority vested in
the judge, both by the general law and the irrigation act, and
the action taken by him, which is the subject-matter of the

complaint.
The relief sought by the proceeding is to have this court,
by its mandate to the district court, remove the obstructions
complained of out of the way, and to command the court or
judge to make other rules providing for an adjudication of the
rights of all parties, upon the testimony taken by the referee,
without the institution of a suit, or the formality of plead
ings.
The statute known as the Irrigation Act of February 19,
1879, is, perhaps, one of the most llD.pJl'tt1nii acts, embracing
as it does, one of the most ditcult subjects ot legislation.

And when the novelty of the subject, the urgent necessities of
the various claimants, and the total lack of precedent applica
ble to the conditions of soil, climate, and the varying supply
of water in the agricultural districts, are all considered, it is
not to be wondered at, that the law is not more complete and
perfect in its various provisions. It is, probably, a step in the
right direction, and a great advance on all previous enact
w
i_
- _
379
meuts. Indeed, it is the rst systematic attempt as yet made

to determine and enforce the rights of all persons claiming
waterin the several natural streams formed by the melting
snows of the mountains, and which with their tributaries are
distributed amid, and wind their sinuous ways through the
arid lauds of the State.
The act subdivides the principal agricultural portion of the

State into ten irrigation districts, provides for the appoint
ment of a water commissioner for each district, to divide the
waters in the natural streams among the several ditches ac
cording to the rights of each, and giving to such commissioners
police powers for the enforcement of such divisions. Provis

ion is made for the appointment of referees in each water dis
trict, whose duties are, upon giving the notices prescribed in
the act, to take the testimony of all persons or corporations
interested, or claiming to be interested, in ditches and reser
voirs, giving such persons the right to offer any and all proofs
which they may deem advisable for their interests; and it is
provided that those who neglect or refuse to appear before the
referee and make proof of their claims, shall be forever barred
from making any claim to priority against claimants who do
appear and make proof of their claims, unless for good cause
shown, the judge of the district court shall permit them so to
do. The act makes provisions also for xing the price of
water to be sold from ditches and reservoirs to consumers,
and likewise for a pro rata division of water among those en
titled in times of scarcity; and exclusive jurisdiction is
vested in the several district courts to adjudicate all rights of
appropriation of water, and to pass upon all questions of law,
and questions of right growing out of, or in any way involved
or connected with the subject of water rights. The judges of
these courts are empowered to make any and all orders

and rules necessary and expedient to carry out the in
tent of the act, as well touching the proceeding in court as
the acts and doings of said referees, and also for tho purpose
of securing to any party feeling aggrieved by the acts of such
380

referee or the decree of the court, opportunity for redress.

Provision is made for a review with additional testimony of
any decree made under the act at any time within two years
from the time of entering up the same, where it appears that
the ends of justice will be thereby promoted; and it is spe
cially enjoined that this act in all courts shall be liberally con
strued in favor of securing to all persons interested in any pro
ceeding hereunder the just determination of their rights.

The foregoing is the scope of the act,.and the substance
of its provisions. The district courts, or the judges there
of, are required to adjudicate the rights of all persons and
corporations claiming to have made appropriations of water,
and to enter up decrees settling and determining such
rights and claims, but no provision is made for suits upon the
dockets of the courts or for parties thereto, nor for personal
service of process upon owners of water rights, and persons
whose titles to alleged appropriations are to be aected by such

decrees. It appears to be the view of petitioners and their
counsel that the spirit and intent of the act simply require a
general notice to all concerned that the taking of testimony has
been completed by the referee, and that on a certain day a de
cree will be entered thereon settling the rights and titles of all
claimants.
If this be the correct view, such a proceeding
would certainly be an anomaly in legal jurisprudence. By

such a construction of the act, water rights in ditches and in
the several natural streams, which it must be borne in mind
are rights of property, are to be adjudicated, and the various

claims therein conrmed or divested, without a cause in court,
without parties, without pleadings, and without an attempt to

obtain personal service upon those whose property rights are
to be affected, but solely upon such general notice, and upon
a mass of testimony in the form of ex parte depositions which
were not taken in any litigated case.
\Vonld orders and rules
requiring and sanctioning such extraordinary proceedings, so

widely variant from the usual course of proceedings in courts,
be a wise exercise of the liberal discretion vested by the legis
381
lature in the district judge? It must be remembered that these

property rights in water are as important, as valuable, and as
extensive as the broad acres to be fertilized thereby; for with
out one the other is almost valueless. It is in vain that the
thirsty soil of our valleys and plains be tickled with plow or hoe
it will refuse to bring forth its fruits without the application
and vitalizing inuences of water. Suppose that proceedings of
the character contended for were under similar legislation em
ployed to settle all questions of title to the lands to be irrigated,
would they not be considered of doubtful validity? And \vhere
titles should be divested by such proceedings, might not some
doubt be entertained whether the same was done by due process
of law within the meaning of the Constitution? But if the valid

ity of such proceedings be conceded, would not a court of general
jurisdiction be justied in exercising the widest liberality of
discretion in requiring parties whose rights were to be affected,
to be regularly brought into court previous to decree, even
though the statute itself had failed to make such specic pro
vision?
Blackstone says that A court is dened to be a
place where justice is judicially administered.
* * * In
every court there must be at least three constituent parts; the

actor, reus and judew; the actor or plaintiff who complains
of an injury done; the reus or defendant, who is called upon

to make satisfaction for it; and the juries: or judicial power
which is to examine the truth of the fact, to determine the
law arising upon that fact, and if any injury appears to be

done, to ascertain, and by its officers to apply the remedy. 3
Bl. Com. 2-i5. Another author says:-- No one can properly
resort to a court of justice until his right is disputed, so there
must be a complainant and some one to complain against.

1 Waits Pr. 32.
While many of the provisions of this act are wise and salu
tary, the act bears internal evidence of hasty and ill-considered
legislation. The machinery for adjudicating individual rights

and titles is certainly imperfect and incomplete. It is true,
this whole subject of providing rules of proceeding and prac
382
SUPREME COURT or Cononano.

tice in the courts, is committed to the wisdom and discretion

of the district judges, and it is a redeeming feature of the
statute that it was committed, with the injunction that the

act be construed liberally in favor of securing to all persons
interested in any proceeding thereunder, the just determina

tion of their rights. The burden of the complaint in the
present petition is, that the judge of the second judicial dis
trict has been entirely too liberal in this behalf, in his con
struction of the act, and that the rules that he has promulgated
for carrying out the purposes of the act, are in violation of its
spirit and intent, and tend to defeat the purposes thereof.

Upon consideration of the whole case, it would appear that
the main questions involved in this issue are, not whether the
act of the legislature will bear a different interpretation from

that given it by Judge Elliott; nor whether other and di'erent
rules of proceedings might not with propriety have been
adopted; nor whetheroany rules are necessary to enable the

court to enter up a decree upon the testimony taken and re
ported by thereferee; but the questions are, were the rules

and orders complained of made in the exercise of judicial dis
cretion, and within the limits of the power conferred by the
act and by law; and can the statute be executed under such
rules and orders?

Upon careful consideration of the several provisions of the
act in question, of the rules made by the district judge, the
authority vested in courts of general jurisdiction to prescribe
rules of practice incidental to the legal and proper exercise of
such jurisdictionmindful also of the established principles of
law governing the exercise of the remedy by mandamus above
cited, we are of opinion that these rules and orders were made
in the exercise of judicial discretion, and by virtue of author
it_v for that purpose delegated by the legislative assembly, that

the purposes of the act may be carried out under them. 1t ap
pearing also that the judge is willing to proceed under the rules
so made, to adjudge and decree the rights of all parties when

ever the required steps are taken to bring into court all whose
_ DECEMBER TERM, 1880.
383
Gomer v. Chatfe.
rights are to be affected by such adjudications, it follows that
there is not such a case presented by the petition as will war

rant the issuance of the writ, and the demurrer to the petition
is sustained.
Demurrer sustained.
Chief Justice ELBERT being absent, did not sit in this case.
iii
GOMER v. CHAFFE.
1. The proceedings of the county court must be presumedto have been
regular in every respect, unless the contrary appears in the record.
2. The section of the Code (201) which requires a motion for a new trial,
and the decision thereon to be made and had at the same term the ndings
are made or verdict rendered, is directory merely so far as the action of the
court is required to be performed within a specied time.
3.
Where a trial was to the court, and its ndings were announced, and
counsel gave notice of a, motion for a new trial, and subsequently at the same
term led his motion, but the motion was not disposed of until the subsequent
term, held that the proceedings at the rst term, subseque it to the ndings,
operated to reserve the case and tocontinue the jurisdiction beyond that term.
for the purpose of disposing of the motion and the settling the bill of excep
tions.
4. The ndings of a court do not constitute a judgment.
Error to County Court qf Arapa/we County.

Morrow to strike out bill of exceptions, and to dismiss writ of
error.
Mr. J. W. Hoazvnn, for plaintiff in error.
Messrs. STALLCUP & Lorna, for defendant in error.
PER OURIAM. The motion to strike out the bill of excep
tions, and to dismiss the Writ of error, is based mainly upon
~_
I381

Gomer v. Chaife.
the proposition that in contemplation of law, judgment was

entered in the case at the April term, 1879, of the court below,
and that it had not jurisdiction at the subsequent June term,

to entertain and decide the motion for a new trial, nor to make
or settle a bill of exceptions. The trial was to the court with
out a jury, and its ndings were announced on the 8th day of
April. A notice of a motion for a new trial was then given
by counsel for the plaintiff, and afterwards a written motion
was led.
At the June term, counsel for both parties appeared before
the judge, and argued the motion; it was denied, and time was
asked and given to prepare and tender a bill of exceptions.
This was done within the time granted, and the bill of excep
tions signed by the judge.
Two propositions are laid down by counsel in support of the

present motion.
First, that the motion for a new trial was
not made within the time prescribed by the statute.
Second,
that upon the making and ling of the ndings of the court
upon the issues, at the April term, in the absence of an order
of court reserving the case for further proceedings, the juris
diction of the court over the case and the parties ceased, the
clerical duty of entering up the judgment only remaining;
and the term having closed without a decision of the motion
for a new trial, in contemplation of law, the judgment was
entered at the April term; consequently the motion could not
be entertained at the subsequent June term, nor could a bill
of exceptions be settled at that term.

The transcript of the record does not show when the motion
for new trial was led. An interlineation in the billof excep
tions states that it was led April 14th, but it is conceded that
this was inserted after the transcript was brought into this
court. It must therefore be disregarded.
There is an admission in this motion to dismiss, however,
that the motion for a new trial was led at the April term.
Counsel for both parties appeared before the court at the
June term and discussed the motion, and it not appearing
385
Gomer v. Chaffe.
that an application to strike it from the files was made, or

that any objections were interposed as to the time of filing it,
the presumption obtains that it was filed in apt time. As
said in a former opinion of this court, the proceedings of the
lower court must be presumed to have been regular in every
respect, unless the contrary appears in the record. Martin v.
Force, 3 Col. 199. See also, Battersby v. Abbott, 9 Cal. 565.
It remains to enquire whether a motion of this character,
made in due time, pending and undecided at the term at which
the findings were made, will have the effect to carry the case
over to a subsequent term.
Upon this point, counsel for plaintiff in error cite us to
Wade on the Law of Notice, p. 511, Sec. 1202.
This section lays down the rule, that if due notice of the
motion is given, and followed up by a proper statement of
what the motion will contain, made in due time, the moving
for a new trial will continue the jurisdiction beyond the term;
but if the notice and motion are not in statutory time, the
court loses jurisdiction of the cause at the end of the term.
In view of the presumption which obtains in favor of the
regularity of the proceedings of the court below, this author
ity is favorable to the jurisdiction in the case at bar.
The same rule was adopted in the cases of Lurvey v. Wells,
Fargo d, Co. 4 Cal. 106, and Copper Hill Mining Co. v.
Spencer, 25 Cal. 16.
But it is suggested that Sec. 201 of our civil Code is manda
tory upon this point, and divests the court of jurisdiction at
the close of the term. It requires the motion for a new trial
and the decision thereon to be made and had at the same term
the findings are made or verdict rendered. In our judgment,

this section must be construed to be directory, so far as the
action of the court is required to be performed within a speci
fied time.
It is the duty of courts to use all reasonable diligence in the

decision of motions and other matters presented for their de
termination, but to say that they shall all be decided at the
25
386

Gomer v. Chaffe.
same term during which they are presented, regardless of their
importance or difficulty, or of the time of submission, would be

unreasonable. Sec. 203 of the Code requires the judge, upon
granting or refusing a new trial, to state in writing the grounds
upon which the same is granted or refused. This provision
was doubtless intended to secure a careful consideration of such
applications, as well as to inform litigants of the grounds of

the decision. It not unfrequently happens that these motions
are presented and argued or submitted upon briefs, on the last
day of the term. In many instances they require a thorough
review of the evidence, and they often involve the examination
of authorities not previously brought to the attention of the
court. If the provision is to be held mandatory, the effect
will be to require many of these motions to be decided without
due consideration, a result which will defeat the spirit and in
tent of the statute.
Similar statutory provisions have been held to be directory.

Section 632 of the California Code provides as follows:
Upon the trial of a question of fact by the court, its decision
must be given in writing and filed with the clerk within thirty
days after the cause is submitted for decision.
The case of McQuellan v. Donohue, 49 Cal. 157, construes
this provision to be directory merely. The same doctrine in
respect to statutory provisions of this character is laid down
in Vermute v. Shaw, 4 Cal. 214, and Broad v. Murray, 44

Cal. 228.
We are of opinion that the proceedings at the April term

subsequent to the findings, operated to reserve the case for
further consideration, and to continue the jurisdiction beyond
that term. No judgment was entered at the April term, and
no direction by the court to enter judgment, was given at
that term.
We held in Alvord v. McGaughey, at the April term 1880,

of this court, that the findings of the court do not constitute a
judgment.
The action of the court below in deciding the motion for a
387
Martin v. McLaughlin.
new trial, and settling the bill of exceptions at the June term
must be sustained.
Motion denied.
Chief Justice ELBERT being absent, did not participate in

the hearing of this motion.
MARTIN v. McLAUGHLIN.
1. The truth of an averment of ownership in the consignor, in an action
against a carrier, is to be determined by the evidence upon issue made.
2. Whether the consignor or consignee is entitled to an action against the
carrier upon a liability incurred in the shipment of goods depends as well up
on the terms of the contract as to purchase or order and shipment between
the consignor and consignee, and the contract with the carrier, as upon the
general rule of law.
3. Presumptively the general owner, or he in whom the property is vested

at the time the right of action accrues, is entitled to sue upon the breach of
contract of carriage.
Appeal from County Court of Lake County.

Mr. D. J. HAYNES, for appellant.
STONE, J. The only question brought up by the record in
this case is the sufficiency of the amended complaint in the
cause, which, as set out in the record, is as follows:
The plaintiff, complaining of the defendant, alleges:
First. That at the times hereinafter mentioned, the defend
ant was a common carrier of goods for hire between the places
hereinafter named.
Second. That on, to wit, the 21st day of December A. D.

1878, the Denver, South Park and Pacific Railroad Company,
388

a corporation engaged as a common carrier of goods for hire,

between the city of Denver, in the State of Colorado, and a
station in said State called or known as Grant, at or near the
end of said railroad companys track, delivered to the defend
ant certain goods, the property of the plaintiff, to wit: 92 cans
select oysters, 29 cans A. Booth oysters, 3; cans Anchor
oysters, 910 pounds dressed turkeys, 519 pounds dressed
chickens, seven dozen undressed quails, three dozen undressed
grouse, twenty-one pounds dressed ducks, of aggregate value
of three hundred and twenty-nine dollars and forty-four cents
($329.44), and the defendant as such common carrier received
the same at the aforesaid station of Grant, to be by him safely

carried to the town of Leadville, in the county of Lake, and
State of Colorado, and delivered to one Joseph McCarter, the
consignee thereof, for a reasonable reward, to be paid by the
said Joseph McOarter, the said goods having been shipped to

him as a purchaser thereof.
Third. That the said defendant did not safely carry and de
liver said goods as aforesaid, but carried the same to the said
town of Leadville, and tendered them to said consignee, who re
fused to receive or accept the same or any part thereof; and there
upon the said defendant did on, to wit, the 25th day of Decem
ber, A. D. 1878, sell and dispose of said goods, and appropriate
the money received therefor to his own use and benet, with
out having rst notied the owner and consignor, the plaintiff
herein (although he well knew the said consignor and where he
lived); that the freight on said goods was unpaid, and without
having given twenty days notice of the time and place of sale
of said goods to the owner and consignor, or to the consignee
thereof, and without having published said notice in a daily or
weekly newspaper, published where said sale was to have taken
place.
Fourth. That the defendant so sold and disposed of said
goods and appropriated the proceeds as aforesaid, without rst
having given the owner and consignor, or the consignee
thereof, his or their agent, notice of his intent so to do twenty
389
four hours before said sale was to have taken place, and that
said consignee did live at the place or town where said goods
were sold, and that the defendant did not sell said goods, or
any part thereof, at public auction, to the highest and best
bidder, and did not sell the same or any part thereof, for the
best price that could reasonably have been obtained in the mar
ket where they were sold, and at the time they were sold, and
that said defendant did not dispose of the proceeds of said sale,
as provided for in section 1865 of the General Laws of the
State of Colorado. Wlierefore plaintiff demands judgment

against the defendant for the sum of three hundred and
twenty-nine dollars and forty-four cents, and the interest on
the same from the 25th day of December, A. D. 1878, at
the rate of ten per cent. per annum.
To this complaint a demurrer was interposed by the appel

lee, which is as follows:
The said defendant demurring to the amended complaint

of the plainti', and for cause of demurrer, shows that said
complaint does not contain suicient facts to constitute'a cause
of action, because:
First.
As shown by the complaint, the title to the goods,
and the sole right to sue for any injury thereto, or conversion
thereof, was vested in the purchaser and consignee of said
goods.
Second. After purchase by the consignee and delivery to
the carrier, the plaintiff had no control over the goods, other
than a right of stoppage in transitu, which he did not exer
cise.
~
Third. The complaint states a cause of action by the
plaintiff against the consignee only.
The consignee became
liable to the plaiutiif when the goods were delivered to the
carrier, and had the sole right to authorize, permit or sue for
their conversion by defendant.
This demurrer was sustained by the county court, and judg

ment rendered accordingly, plaintiff electing to stand by his
complaint.
390
SUPREME Conan: or COLORADO.

McClelland et al. v. Burns.
The judgment of the court in_ sustaining the demurrer was

excepted to, and is assigned for error.
We think the exception is well taken. The complaint, in
each of the second, third and fourth paragraphs, expressly
avers ownership of the property in the plaintiff. The truth ot'
these averments is a matter to be determined from the evidence,
upon an issue made by proper denials or averments in defense.
As to whether the consignor or the consignee is entitled to an
action against a common carrier upon a liability incurred in
the shipment of goods, depends as well upon the terms of the

contract as to purchase or order and shipment between such
consignor and consignee, and the contract with the carrier, as
upon any general rule of law. Presumptively, the general
owner, or the one in whom the property in the goods is vested
at the time the right of action accrues, is entitled to sue upon

breach of the contract of carriage. Angell on Carriers, Tit.
Parties to Sue.
The truth of the allegations in the complaintbeing admitted
by the demurrer, there was certainly a cause of action presented
by the plaintiff, and the demurrer was wrongly sustained. For
the error of the court below in this respect, the judgment must
be reversed and the cause remanded.
Judgment reversed.
MCCLELLAND ET AL. v. BURNS.

1. A carrier to be liable for injury to a passenger, must have been guilty
of negligence which was the proximate cause of the injury complained of.
2. In construing a. charge to a jury, each instruction should be consid
ered in connection with the entire charge, and if, considering the charge and
instructions as a whole, this court is satised the jury were not improperly
advised as to any material point in the case, the judgment will not be re
versed on the ground of an erroneous charge.
Appeal from District Court qf Lake Oou/ntg/.
Dnonnmza TERM, 1880.
391
McC1elland et al. v. Burns.

Mr. Looms P. Manse, and Mr. J. F. WELBORN, for appel
lants.
Brzcx, J.
Although we have considered this case on the
brief of the appellants, none being led on the part of the ap

pellee, we are unable to discover any error in the proceedings
below sufficient to reverse the judgment of the district court.
The errors complained of, are that the cause was not sub
mitted to the jury upon proper instructions.
An inspection of the record discloses the following state of
facts, out of which the present case arose: On the 31st day of
December, 1S78, the appellee took passage on one of the appel
lants coaches at Colorado Springs, for Leadville. He reached
Fairplay that day, and remained there over night. Next morn
ing he resumed his seat in a covered four-horse coach of the ap
pellants, going to Leadville, but was ordered by one of appel
lants agents to get out of the coach and to get into an open
wagon drawn by two horses, which order he complied with.
He, with three other passengers, was taken in this vehicle

through a heavy snow-storm to what was known as Davidsons
Half-way House, on the east side of the range, and about two
miles from the summit. Here the wagon halted for dinner, and
probably changed horses. After dinner the journey was resumed
in ablinding snow-storm, the weather being also very cold; and
the driver nding the team unable to draw the wagon with its
occupants, ordered all the passengers to get out and walk up the
mountain, declaring he would go no further unless they did as
required. The four passengers nally got out, two of them tak
ing hold of the rear end of the wagon, and thus allowing them
selves to be dragged, or assisted along, were, in this way, enabled
to keep up with the wagon. The other two were the plaintitf,
Burns, and one Michael McNamara. Both appear to have

been unacquainted with the route, and both swore positively
that they used their best efforts to keep up with the wagon as
it ascended the range, but it was an impossibility so to do.
392

McNamara swears he only succeeded in keeping in sight of it

to the rst bend in the road after being ordered to get out, and
that the plaintiff was then behind him.
The distance from
where they got out to the top of the range was somewhere
from half of a mile to a mile, although the passengers think it
was much further. The snow was drifted in the road in many
places to a depth of more than three feet, and was then drift
ing so badly that passengers in a four-horse sleigh of appel
lants, which immediately preceded the open wagon, say they
could scarcely see the rear horses; and passengers in the open
wagon say the hand could be scarcely seen before the face.
They also say that the weather was so intensely cold that
icicles formed on their eyelashes, as they gropcd their way
through the storm, which had to be broken away every few
minutes in order to sec anything. In a few minutes after the
wagon and sleigh passed over the road, all traces of the tracks
made were obliterated by the drifting snow, and the plaintiff
and his comrade had frequently to search for the road, as well
as to make their way up the steep ascent through the storm.
On reaching the summit they found to their dismay, that
the driver had gone on with the two passengers who clung to
the rear part of the wagon, and had left them to their fate.
It appears, from the testimony, that the driver waited fteen
minutes for them at the summit before driving o'.
They then wandered some distance down the mountain on
the opposite side, but being unable to nd their way with any
certainty, and not knowing how far they were from any habi
tation, they retraced their steps and reached the Half-way House
the evening of the same day. The appellee appears to have
suffered severely, and to have become so bewildered in the
storm, that but for McNamara, who was accustomed to travel
ing in the mountains, would very probably have lost his way
and perished.
Next day they reached Leadville.
The appel
lee claims to have been badly frozen and injured by the cold
and exposure, and to have been rendered unable to work for

the space of two weeks afterwards, during which time he was
393
under the care of a physician, whose bill for treatment amount

ed to one hundred dollars.
The complaint charges the appellants, and their agents and

servants, with negligence, and with careless and wanton disre
gard of their duties as carriers of passengers, in failing to pro

vide a proper and sufficient coach, and good and sufficient
horses, from Fairplay to Leadville, and in compelling plaintiff

with other passengers, to ride in the open two-horse wagon;
also in compelling plaintiff to walk up the mountain, and then
in driving away and leaving him on its summit, without any
means of conveyance to Leadville or elsewhere, and without
shelter from the severe storm which was raging.
The answer traverses the allegations of negligence, and
charges contributory negligence on the part of the plaintiff.
The trial was to a jury, who returned a verdict of five hundred
dollars for the plaintiff.
Counsel for appellants think the charge of the court to the
jury was misleading, and that the true rule touching negli
gence of the defendants, and contributory negligence of the
plaintiff, was not given. If this be so, it must be because de

fendants counsel did not request the court below to lay down
the true rule to the jury. Nine instructions were given the
jury at request of defendants' counsel, and it does not appear
from the record that they were in any manner qualified by the
court, or that any instruction prayed in behalf of defendants
was refused.
The true rule contended for is, that the carrier, to be liable
for injury to a passenger, must have been guilty of negligence,

which was the proximate cause of the injury complained of;
and however negligent the carrier may have been, however
careless, there is no liability unless such negligence or such
carelessness occasioned the injury complained of.
The first instruction given on part of defendants is as fol
lows:
First. The court instructs the jury that if the injury

complained of resulted without negligence of the defendants,
394

McClella.nd et al. v. Burns.
or from the negligence of the defendants and the culpable neg

ligence of the plaintiff, as above dened, combined, the plain
tiff cannot recover.
It would seem that the average juror would understand from

this instruction, that the plaintiff was not entitled to recover
unless his injury resulted from the negligence of the defend
ants.
The defendants second instruction tells the jury that it has
no right to award exemplary damages for errors of udgment,
or for negligence merely, not accompanied by an apparent
reckless disregard of consequences.
The third instructs the ury, that the defendants are not in
surers against accident.
The fourth is as follows :
'
'
'
Fourth. The court instructs the jury that, in order for

the plaintiff to recover in this case, it is incumbent upon him
to establish :
1. That the injuries complained of by him resulted directly
from the negligence of the servant of the defendants, while en
gaged in doing what was in the scope of his authority to do.

2. That the culpable negligence of the plaintiff did not
contribute to occasion such injury; that is to say, that the
plaintiff himself did not, on the occasion complained of, omit
to exercise such efforts and caution to avoid the accident and
injury as a man of ordinary prudence and circumspection,
placed in the same circumstances, would have exercised.
By the eighth of defendants instructions, the jury is told

that the plaintiff must establish his case by a preponderance
of evidence, and that unless he does this, the jury must nd
for the defendants.
It is true, that in the rst and second instructions given on

behalf of plaintiff, some general principles respecting the duties
and liabilities of carriers were laid down, as that the law im
posed upon them the utmost human care and foresight, and
made them responsible for the slightest neglect; that they
were bound to furnish good coaches, gentle and well-broken
395
Behymer v. Cook.
horses, and a prudent and skillful driver, and that any defect
in such preparation will make the defendants liable for injury.
But, considering each instruction in connection with all the
instructions given, we do not think the apprehensions of coun
sel, that the jury may have been misled as to the law, are well
founded.
The rule established by this court is, that in construing a

charge, each instruction is to be considered in connection
with the entire charge, and, if considering it as a whole, this

court is satised that the jury was not improperly advised as
to any material point in the case, the judgment will not be

reversed on the ground of an erroneous charge.
Union Gold
Mining O0. v. Rocky Mt. Nat. Bank, 2 Colo. 565; Thatcher

et al. v. Rockwell, 4 Colo. 375.
And when we look into the evidence, and note the reckless and
inhuman conduct of the driver of the wagon in deserting the
plainti' to his fate in that wild storm, and upon that bleak
mountain, after requiring him to make his way on foot through
the snow to its summit, there is little reason to apprehend
that the jury may have based its verdict upon acts of negli
gence of appellants or their servant, which were not the prox

imate cause of the injury complained of. We are of the opin
ion the judgment should be airmed.
V
Judgment airvned.
Chief Justice ELBERT being absent, did not participate in
this decision.
-A-iii
BEHYMER v. Coox.
1. A defendant in attachment, claiming (under the statute, subdivision
6 of Sec. 26, Ch. LIII. Gen. Laws) as exemp from levy implements or
stock in trade
'
'
used or kept for the purpose of carrying on his
trade or business," not specically exempt by law, is entitled to select such
396
SUPREME Comm or Cowaano.

Behymer v. Cook.
articles as are suitable to his trade or business; and a failure on his part to
inikc such selection, is a waiver of his right thereto.
2. A sheriff is not liable for damages for levying an attachment upon
property, not specically exempt by statute, in case the defendant declines to
designate the articles he desires to claim.
3. Under the statute, no property is exempt from levy to satisfy a claim
for the purchase money thereof; and a defendant cannot, by selecting such
property, under the sixth subdivision of the exemption law, supra, exempt
it from such liability.

Tun facts are stated in the opinion.
Messrs. STALLCCP and Lorna, for plaintiff in error.
Mr. J our: \V. Homzna, for defendant in error.
BECK, J. This was an action brought by the plaintiff in error

against the defendant in error, under Sec. 28, Ch. LIII, Gen.
Laws, to recover three times the value of certain property seized
by the defendant as sheriff, under a writ of attachment, it being
alleged that a portion of the property was exempt from levy
and sale, under the airct/1 subdivision of Sec. 26 of the same
chapter.
This section provides that The following property, when
owned by any person being the head of a family, and residing

with the same, shall be exempt from levy and sale upon any
execution or writ of attnclnnent, or distress for rent. * * *
Sixth. The tools and implements, or stock in trade, of any
mechanic, minor or other person, used and kept for the purpose
of carrying on his trade or business, not exceeding two hundred
dollars in value.
The business in which the plaintiff was engaged at the time
of the levy of the writ of attachment was that of an undertaker
and cabinet maker, and he had on hand at the time of the levy
of the writ, a number of metallic burial cases and a number of

wood burial cases, together with boxes, hardware and other ma
terials for the same. These articles were all manufactured and
397
Behymer v. Cook.
purchased in the East, and came here ready for re-sale, much
like other merchandise. Plaintiff had tools and implements
for carrying on the cabinet making business, and embalming
tools or implements, to be used in the undertaking business; he
also had some chemicals for the latter business, and materials
for the former, capable of being wrought into manufactured

articles.
Neither the tools nor materials pertaining to the cabinet mak

ing business, nor the tools nor chemicals pertaining to the
undertaking business, were taken upon the attachment. The
goods taken were the coffins, and the attachments belonging
thereto; and of the articles taken, the testimony of the plaintiff
shows that all but seven, being three metallic and four wood
coffins, belonged to one Elizabeth Chandler.
The claim made by the complaint is, that the property not
taken was worth but thirty-five dollars, and that plaintiff was
entitled to have retained a sufficient number of the articles

taken to have amounted to the sum of two hundred dollars.
At the conclusion of the testimony offered on behalf of the

plaintiff upon the trial below, which was to a jury, the court
nonsuited the plaintiff on motion of defendant's counsel, on the
ground that the plaintiff proved no demand for any of the prop
erty taken upon the writ of attachment, except a written de
mand for certain articles purchased by him from the plaintiff in
attachment, and that the indebtedness for the same constituted
in part the claim upon which the attachment issued.

The articles referred to were the three metallic burial cases.
Counsel for plaintiff in error contend that there was no com

petent evidence of a written demand in the case. That all there
is upon the point was drawn out on the cross-examination of
the plaintiff; and that the paper shown the plaintiff, and iden
tified by him on the witness-stand as the written demand pre
pared by his counsel, Mr. Sampson, and served upon the sheriff
after the levy, is not in evidence, nor any competent proof
of its contents.
Counsel for defendant in error insists that the
plaintiff admitted upon the stand that the written demand was
for the three metallic cases, which were unpaid for.
398

Behymer v. Cook.
It is true, the paper identified by the plaintiff as containing

the written demand, was not introduced in evidence, and if it
be conceded, as contended by plaintiffs counsel, that its con

tents were not disclosed, the result is, that while it appeared
from the plaintiffs testimony that he made a demand in writ
ing upon Sheriff Cook for a return of the articles mentioned
therein, yet the plaintiff failed to inform the court and jury
what articles he so demanded.
There was clearly no property selected as exempt at time of

the levy, and no claim made at that time that any property
was exempt.
The attachment was levied by under-sheriff Smith, and

plaintiff swears that he told Smith at the time of said levy
that he proposed to stand by his legal rights, and that he asked
Smith to respect his legal rights.
When asked upon cross-examination if he made a demand
upon the sheriff to deliver him certain of the property, his
answer is, No, sir, I positively did not upon Mr. SmithI
made no demand.
It is admitted by the pleadings that plaintiff demanded a

return of the three metallic burial cases.
These cases were
purchased by plaintiff from Crane, Breed & Co. (who were

plaintiffs in the attachment suit), together with other articles
in the same line, the bill amounting to the sum of three hun
dred and thirty-six dollars and twenty-five cents. As we under
stand the testimony, this bill remaining unpaid, and defendant
having executed to one Elizabeth Chandler chattel mortgages
upon the greater part of his stock, Crane, Breed & Co. sued
out a writ of attachment and caused it to be levied upon his
entire stock of coffins, and the attachments belonging thereto.
Plaintiff admits that he swore, on the trial of the attachment

suit, that all the articles levied upon, except the seven coffins,
belonged to Mrs. Chandler. The attachment suit being an
action to collect the purchase money of the bill purchased in
April, and the three metallic coffins comprising a portion of
that indebtedness could not be claimed as exempt property,
399
Behymer v. Cook.
since the ninth subdivision of said Sec. 26 provides that no

article of property shall be exempt from attachment or sale on
execution for the purchase money of said article of property.
Counsel for plaintiff in error seem to think that the defend
ant is liable for the action of the under-sheriff in levying upon
the whole stock of coffins without setting apart some of them
as exempt under the statute referred to. We are of the opin
ion that this officer performed his duty correctly. He notified
plaintiff that he came to levy on his goods. It then became
the plaintiffs duty to claim his exemption. He did not do
this, but gave the officer the key, and told him he hoped he
would respect his legal rights. This the officer appears to
have done, so far as he knew what his rights were. As we
have seen, he left as exempt all plaintiffs tools and materials
used in making manufactured articles, also the tools and ma
terials used in embalming; likewise furniture used in the busi
ness, bedding, etc., amounting to more than ninety dollars, as
plaintiff admitted on the trial.
The property left by the officer as exempt, comprised all the
articles found by the officer which were specifically exempt from
levy and sale under the statute; and we hold that, where a de
fendant in execution or attachment is entitled to retain other
articles of property, amounting to a specified value, as exempt

from execution or attachment, he is entitled to select such ar
ticles as are suitable to his business or trade, and the selection
being made, it operates as a waiver as to other property not

selected and not specifically exempt by law. This option was
exercised in the present casenot at the time of the levy, but
afterwards. The plaintiff, under the advice of his attorney,
Mr. Sampson, made his selection, and his attorney incorporated
it in a writing, which the plaintiff, by advice of his attorney,
signed and served upon Sheriff Cook. Thus far the testimony
is clear and positive. But we are told by the plaintiff's pres
ent counsel, that the contents of this written demand are not
in evidence. If not, the plaintiff clearly has no case. He

proved that he exercised his privilege of selecting such articles
400
SUPREME Comm" or Commno.

Behrens v. K. P. Ry Co.
of property as he desired to claim, under the statute of exemp

tion, and then closed his case without telling court or jury
what those articles were. This is fatal to a recovery. Before
it can be decided whether the articles selected were exempt or
not, it must be in proof what those articles were. If they were
the three metallic coins, as admitted by the answer of defend
ant, they were not exempt, the action being for the purchase
money thereof.
It is unnecessary to discuss the question of law raised in the
briefs of counsel, as to what constitutes stock in trade under
the statute, as no case was presented for the consideration of
the jury, in any view that may be taken of the testimony.
The udgment is airmed.
Armed.
Bnnnsrrs v. Kansas PACIFIC RAILWAY C0.

1. The general rule is, that to authorize a recovery for damages occa
sioned by the negligence of another, the plaintiff must have exercised that
reasonable degree of care to avoid the injury which an ordinarily prudent_per
son would have exercised under like circumstances.
2. In actions of this character, it is incumbent on the plaintilf to make
out
a. prima facie case in his favor, showing that the
damages claimedi by
him resulted from the negligence of the defendant.
,
3. Where it affirmatively appears from the plaintiffs evidence, that the
want of due prudence upon his part was the proximate cause of the injury
complained of, it becomes the duty of the court, upon motion made for non
suit, to decide as a question of law that the action cannot be maintained.
Error to District Court of Arapahoe Oounty.

Tun facts are sufficiently stated in the opinion.
Messrs. STALLCUP & LITTIIE, for plaintiff in error.
Mr. WILLARD TELLER, for defendant in error.
D1-:c1~;MB1~:R TERM, 1880.
401
Behrens v. K. P. R'y Co.
Bnnx, J. The plaintiff in error brought his action in the

district court to recover damages for injuries sustained by be
ing struck by one of the defendants engines while attempting
to cross the railroad in the companys track-yard in the city of
Denver. The plaintiff was in the employ of the defendant, in
its track-yard, as a repair hand, and had been so employed
about six months when the injuries were received. On the
day of the accident he, with six or eight other men, was em
ployed in the yard, in constructing a coal-switch at the upper
end of the yard, under the direction of one Adam Wliite, as
foreman. About ten oelock in the forenoon plaintiff and

others were ordered by the foreman to carry some blocks of
wood from the south to the north side of the track, at a point
about one thousand feet east of the cornpanys depot. An en
gine was then, and had been for some time previous thereto,
engaged in switching cars in the yard, and was passing up and
down the track quite frequently. Plaintiff, without taking the
precaution to look along the track to see if the engine was ap.
preaching, and without listening for its approach, picked up a
block of wood, lying from six to eight feet from the track,
placed it upon his left shoulder, and, in attempting to cross the
track, was struck by the engine. The block was six or seven
feet long, twelve inches wide, and about six inches thick.
Owing to the size and shape of this block, and the position in
which it was placed upon the shoulder, it obstructed the plain
tiff s view along the track toward the depot as he faced the
track. The engine came from the direction of the depot with
a train of ears attached, and was running at the rate of about
ten miles per hour. The usual rate of speed allowed in the
yard was about six miles per hour. It was customary to ring
the bell when passing a squad of men on the track, but on
this occasion no signal was given. The track was straight
and almost level from where the men were at work to the
depot, a distance of about one thousand feet, and the engine
could have been seen the whole distance if plaintiff had looked
for it. The engine and train, running at the speed of ten
26
I.-1-...
_ _
40).
SUPREME Counr or Conoaano.

Behrens v. K. P. R/y Co.
miles per hour, could have been heard that" morning a distance
of half a mile. The plaintiff neither saw nor heard the train
until he was struck, although his eyesight and hearing were
both good.
Upon the conclusion of the testimony on part of the plain

tiff at the trial, a motion to nonsuit him was sustained by the
court.
The main question to be considered is, whether the plaintiff

was entitled to have had his case submitted to a jury, upon
the facts and circumstances detailed by him and his witnesses.
For the purpose of this inquiry, we assume the facts to be as
sworn to by these witnesses.
Counsel for plaintiff claim that the questions of defendants
negligence, and of the supposed contributory negligence of the
plaintiff, are questions of fact, depending upon inferences to be
deduced from a variety of circumstances, in regard to which
there is room for a fair difference of opinion between intelli
gent and upright men, for which reasons they contend that
these questions should have been submitted to the jury. In
this connection they cite the following rules of law, viz.: That,
as a general rule, the question of negligence is a question of
fact, and not of law. When the facts are undisputed. the ques
tion of negligence is not necessarily one of law. These legal

propositions are supported by authority, but like all other cor
rect legal propositions, they can only have a controlling effect
in cases where they are rendered applicable by the state of facts
disclosed by the evidence: and from a careful examination and
consideration of the testimony in this case, we are of opinion
that the rst proposition, viz.: that the questions of negligence
involved depend upon inferences to be deduced from a variety
of circumstances, in regard to which there is room for a fair
difference of opinion between intelligent and upright men,

cannot be sustained.
In the numerous cases to which the court has been referred
by the counsel of the respective parties, no case goes to the
extent of holding, as matter of law, that a recovery may be
~w1
403
had, where the injured party, knowing the dangers of his

position, failed to take any precautions to protect himself
from injury. The doctrine of all the cases is, that if a plain
tiff so circumstanced might have avoided the injury by the
exercise of ordinary care, he cannot recover, although the de
fendant was negligent. The general rule is, that to authorize
a recovery for damages occasioned by the negligence of another,
the plaintiff must have exercised that reasonable degree of care
to avoid the injury which an ordinarily prudent person would
have exercised under like circumstances.
--
In this case the plaintiff was engaged in an employment

fraught with danger. He was crossing and re-crossing a rail
road track, upon which an engine was frequently passing up
and down, switching cars.
There were no obstructions to
prevent the plaintiff from seeing the engine in ample time

to have kept out of its way, and he might have heard the
noise of the engine and the cars approaching before they came
near enough to have endangered him. Through mere inat
tention
and carelessness he neither saw nor heard them.
Without either looking along the track, or listening for the

approach of the engine, he shouldered his block of wood and
stepped upon the track directly in front of it. Neither the
order to carry the blocks, nor the nature of the employment
gave him a right-of-way as against the company's engines and
cars; the nature of his employment affords no excuse for his
reckless conduct. While it was the duty of the engineer to have

rung the bell, as a signal to the workmen that the engine was
coming, it was the duty of the latter to have been watchful
and upon their guard against surprise. Failing to exercise
any precaution whatever, under circumstances where the exer
cise of ordinary and reasonable prudence would have saved the
plaintiff from harm, in the absence of testimony that the in

iury was willfully or wantonly inflicted, the negligence of the
defendant will not warrant a recovery. Sherman & Redfield
on Negligence, Secs. 2542; Gonzales v. N. Y. & Harlem R.
I?. Co. 38 N. Y. 440; Kelly v. Hendrie, 26 Mich. 255;
404
SUPREME COURT or Cownaoo.

Behrens v. K. P. R'y C0
Dickey and lV1_'fe v. lllaine Tel. U0. 43 Me. 492; Brown, v.

European c N. A. Rwy. 0'0. 58 Me. 384; Prideaua: and
Wglfe v. The City of Mineral Point, 43 Wis. 52-L
<
In actions of this character, it is incumbent upon the plain
tiff to make out a primafacie case in his favor, showing that
the damages claimed by him resulted from the negligence of
the defendant. And where it airmatively appears from his

own evidence that the want of due prudence upon his part was
the proximate cause of the injury complained of, it becomes
the duty of the court, upon a motion made for nonsuit, to de
cide as a question of law, that the action cannot he main'tained),._.
In Ernst v. Hudson River R. R. C0. 35 N. Y. 41, it was
said that a nonsuit should always be granted where the proof

is so clear as to warrant the assumption in good faith, that if
the question were submitted to the jury, it would nd that the
culpable negligence of the plaintiff contributed to the injury.
We are referred to page 47 of this opinion as announcing a
contrary doctrine. On that page we nd the following propo
sition. What constitutes negligence in a particular case, is
generally a question for the jury, and not for the court, be
cause negligence is want of ordinary care.
This proposition
is credited to the opinion in North Pa. R. R. 00. v. Ilillman,

49 Pa. St. 60, in regard to which the New York court observes:
These authorities are _not in conict with those which hold

that in certain cases the courts rule the question as one of
law, as where the evidence so clearly shows the want of pru
dence and discretion that there can he nothing for the jury to
pass upon.
. In Barton v. St. Louis c Iron Mt. R. R. 0'0. 52 Mo.
'_i. 258, this subject is considered, and the rule laid down by
hat court to determine when the question is one of law for
tie court, or of fact for the jury, is thus stated: Whether it
s a question'for the court or the jury must be determined by
the facts of the particular case. Negligence is in all cases, in
a certain sense, a question of fact for the jury; that is, it is
for the jury to determine whether the facts bearing upon the
Dacsmsna TERM, 1880.
405
question exist or not. But when the facts are undisputed, or

are so clearly proved as to admit of no doubt, it is the duty of
the court to apply the law without submitting the question to
the jury. This involves no invasion of the province of the jury,

nor any infringement of their legitimate functions, no more
than when the court passes upon a demurrer to the evidence,

or on motions for new trials, upon the ground of the want of
-""_
any evidence to sustain the verdict of a jury.
Counsel for plaintiff in error quote from the opinion in De

troit d Mil. R. R. U0. v. Van Steinberg, 17 Mich. p. 122,
the following sentence:
It is a mistake, therefore, to say, as
is sometimes said, that when the facts are undisputed, the
question of negligence is necessarily one of law. The next sen

tence is:
This is generally true only of that class of cases
where a party has failed in the performance of a clear legal

duty.
Upon another page of the same opinion, it is said : There
are, nevertheless, cases in which it has been held proper for the
court to take the question altogether away from the jury and
decide it as one of law. It is generally held, and is, I think,
the correct doctrine, that it is incumbent on the plaintiff to
show that the injury of which he complains was caused by the
negligence of the defendant, and that it did not arise from his
own negligence or want of skill.
He takes it upon himself to
prove both, and he does not recover if he was negligent, because

it cannot be said that the defendants negligence has caused an
injury which would not have happened but for his own want
of due care. When, therefore, the plaintiff offers no evidence
that he was in the exercise of care, but on the contrary, the
whole evidence on which his case rests shows that he was want
ing in due prudence, the court, it is held, may rightfully in
struct the jury, as a matter of law, that the action cannot be
maintained.
In Lrl /Iaqf, ArImr, v. The Mil. t Pr. rlu Uh. Ry C0. 19
Wis.
is held, that when the conclusion from the evidence
is fairly debatable, or rests in doubt, the question of negligence
406
Susanna Connr or CoLoR.u>o.

is always for the jury; but when there is an entire absence of

evidence tending to establish the case, or where the negligence
of the party injured or killed is afrmatively and clearly proven
by the plaintiff, so as to admit of no doubt or controversy,

a nonsuit may properly be ordered.
It is claimed that plaintiff in error was misled and thrown
off his guard by the failure of defendants servants to ring the

bell of the engine, as they were accustomed to do, and on ac
count of the unusual rate of speed at which the train was run
ning. For these reasons, it is argued that plaintiff was not
guilty of a want of ordinary care and prudence.
The authorities cited in support of this view of the ease are

Shearman and Redeld on Negligence, Sec. 28; The K. P. R.
R. U0. v. Brady, 17 Kan. 380; Pa. R. R. U0. v. Ogier, 35 Pa.
St. 60; Ernst v. [Judson River R. R. C0. 35 N. Y. 928, and
1 M-acq. H. L. 748, which could not be found.
The rst an
thority cited lays down the rule that If the defendant has, by
his own act, thrown the plaintiff off his guard, and given him
good reason to believe that vigilance was not needed, the lack
of vigilance on the part of the plaintiff is no bar to his claim,
especially if the defendant has done so by means of positive
inisrepresentations. It would require avery liberal construc
tion of this rule to extend it to the facts of the case before us,
so as to authorize a recovery. To say that a repairhand in the

track yard of a. railroad company, where cars are being switched,
and the switch engine is constantly moving hither and thither,

has good reason to believe that vigilance is not needed because
the engine usually runs at a certain rate of speed, and it is
customary to ring the bell when it approaches the workmen,
is a proposition we cannot indorse. It would be equivalent to
saying that the employe may close his ears to every other sound
than that of the bell; that he may with impunity walk upon
the track with his eyes closed if the bell be not ringing, and,
if he receives an injury from a moving engine, he may recover,
especially if the engine was running at a greater speed than
usual. An application of the rule cited to the facts of this
____ __
__
__
407
case would dispense with the rule requiring the exercise of rea
sonable care and prudence in almost every conceivable case in
volving the element of contributory negligence. The other
authorities cited are equally wide of the mark. The doctrine
of the case in 17 Kansas is, that all reasonably prudent men,
in the transaction of their own affairs, make some preparation
for the negligence of others, as well as for accidents, and holds
that since all men know that even the most prudent are some
times negligent, they should be required to anticipate that av
erage amount of negligence which must, in the very nature of
things, be expected to transpire. In that case, the court held
that the question whether the plaintiff had exercised due care,
was left in doubt by the testimony, and it was held that it

should have been submitted to the jury.
The case of Pa. R. R. Co. v. Ogier, was an action brought
by a widow to recover damages against the railroad company
for the negligence of its servants, which, it was alleged, result
ed in the killing of her husband. He was attempting to drive
across the railroad upon a public highway. The view along
the track, in the direction the train was coming, was obstructed
by a high bluff. The highway descended a steep hill to the
crossing. There was a break in the face of the hill, at a point
eighty-four feet from the crossing, where travelers were
accustomed to stop their horses and listen for the whistle of the
engine and the rattling of the cars before driving over. The
deceased halted his horse at this spot and listened, but hearing
nothing, remarked to his traveling companion, its all right,
and trotted his horse gently down to the crossing, where he
was struck by the train and killed. It was held to be the duty
of the company to give a signal of the approach of a train to
a road crossing, at such time and in such manner as to be a
timely and sufficient warning to passengers upon the highway.

The testimony was conflicting as to whether the engine whistle
was sounded.
It was not controverted that the deceased halted
at the point named upon the hillside, but there was some testi
mony that he might have seen the train approaching after
SUPREME CouRT of CoIORADo.
408
driving down the hill and before attempting to cross, by the

exercise of proper vigilance; but whether he could have seen
it in time to have prevented the catastrophe, was uncertain.
The jury was instructed, and it was held to have been cor
rect, that if the negligence which occasioned the collision was
on the part of the railroad, the company was liable; if on the
part of the deceased, no action could be maintained; or if
there was mutual negligence, if both parties were negligent,
and the collision occurred for the want of proper care and
prudence on the part of both, the action could not be sustained.
The facts in that case are wholly dissimilar to those in the
case at bar.
The view of the track was obstructed; there was
a horse to manage; a considerable degree of precaution was

taken by the injured party to prevent the accident; both sight
and hearing were exercised, and the testimony was conflicting
upon material points. None of these circumstances exist in
the present case.
Similar to the preceding case, in many respects, is the next
case cited.
Ernst v. Hudson River R. R. Co.
The plaintiff's husband, as in the Pennsylvania case, was

killed while attempting to cross a railroad at a public crossing.
This crossing was at the companys station in a village. De
ceased was driving a pair of horses attached to a sleigh, and

attempted to cross the track to a ferry on the opposite side.
It was a flag station, and the uniform practice of the company
for years had been to post a man with a flag upon the track
when a moving train came near enough on either side the sta
tion to make the crossing dangerous. If the train was to stop
at the station, he exhibited a white flag; if it was to pass
without stopping, he exhibited a red flag. Deceased was ac
customed to travel the highway, and was familiar with this
custom.
A statute of the State, with which he was also famil
iar, and the requirements of which had always been observed
by the company, required engineers of moving trains to give

alarm signals upon approaching the crossings of all public
highways, whenever they came within eighty rods of a cross
409
ing. Deceased had stopped at a hotel in the village to Warm

himself before driving over the railroad to the ferry.
The distance from the hotel to the crossing was 112} feet.
Trains from the north came into the station on a. sharp curve,
and owing to certain obstructions, could be seen at but one
point between the hotel and station, and there for a distance
of thirty-six rods only. The court say, in speaking of the
evidence, that when deceased started from the hotel to drive to
the ferry, he looked north along the track, the direction from
which the train came, but did not see it, for the reason it was
not in view; that he listened for the whistle and the bell, but
heard neither, for the reason that no signal was given.
He
looked to the station for a flag, but no ag was exhibited, and

the absence of these customary signals of danger assured him
that no engine was in motion within eighty rods of the cross
ing. Thus assured, and unable to see or hear any warning of
danger, he drove to the crossing, when a train dashed around
the curve at a speed of thirty-ve or forty miles an hour, col
lided with his team and sleigh, and killed him. The court
held these facts to have been fairly established by the evidence;
but the testimony being very conicting, it was very properly
held that the case should have been submitted to the jury.
The rule of law established for this case and similar cases,
is, The citizen who upon a public highway approaches a rail

way track, and can neither see nor hear any indication of a
moving train, is not chargeable in law with negligence for as
suming that there is no car sufficiently near to make the crossing
dangerous. This rule does not dispense, however, with the

precaution of looking and listening for a train.
It does not
therefore aid the case of' plaintiff in error. And in respect to the
facts, it is diflicult to perceive in what respect they are analo
gous to the ease under review. Certainly not in the obstruc
tions to the view; the statute of the State; the speed of the train ;
the curve in the road; nor in the efforts of the injured party to
discover by the exercise of sight and hearing whether a train

was coming.
410

It is true there was an absence of the usual signals of danger;

but it was at a public crossing in a village, where the practice
to exhibit these signals was uniform, and they were relied upon
by the community. But the distinguishing feature between
the two cases is, that in the one case, efforts were made to as
certain whether a train was coming, which were ineffectual.
In the other case no efforts were made, but if made, they would
have proved effectual.
The opinion of the court, in Detroit d, Michigan R. R. Co.
v. Van Steinburg, announces the same general rules and prin
ciples of decision applicable to cases of this character, as do
the foregoing authorities, and to this extent is in harmony with

the current of judicial opinion upon the subject of negligence.
It must be conceded, however, that the facts in that case bear
a strong analogy to the facts in the case at bar. In neither

case did the injured party act, as it seems to us, with reasonable
care or prudence. The criticism of the associate Justice, Camp
bell, in that case, upon the application of the law to the facts,
expresses our views upon that portion of the opinion. The
Judge says: So long as there is any possible conflict as to
whether his case is made out, the plaintiff has a clear right to
go to the jury. But when upon his own case, as presented by
himself, and as assumed for this purpose to be entirely true,
he shows no cause of action, the effect of the facts so admitted
is a question of law, and a party may require a charge as to
their legal effect. I think this doctrine has never been ques
tioned anywhere. In Pa. Mining Co. v. Brady, 16 Mich.
322, this doctrine was fully applied, and I do not understand
the principle to admit of a doubt.
Again, after reviewing the facts, he says: It seems to me
that if, under such circumstances, a person is not required to
look upon a railroad track before attempting to cross it, there
is no available precaution which the law can exact of a man
of sound mind for his own preservation. Judge Cooley, in
Mich. Cent. R. R. Co. v. Campau, 35 Mich. 468, comment
ing upon the conduct of a man who was walking upon the
railroad track in the city of Detroit, at a point where there are
411
five parallel tracks side by side, and near to where two streets
cross the tracks, who, failing to look behind him, was struck
by an engine and injured, used the following language:
When, under such circumstances, a person places himself
upon a railroad track, with an approaching engine in plain
sight, and without even taking the precaution of looking be
hind him, it is impossible, in speaking of his conduct, to char
acterize it by anything short of recklessness. If the plaintiff
can recover in a case like this, it is plain that the negligence
of the injured party must be held immaterial in any conceiva
ble case.
We think the court below should have instructed
the jury that the plaintiff could not recover.

That case may be distinguished from the one now under con
sideration, by the fact that the injured party in this case was
in the employ of the railroad company, and had a right to be
on the companys grounds, whereas the plaintiff in that case,
not being within the limits of a public street, had no such le
gal right. But the fact that the latter was a trespasser, gave
the railroad company no license to run its engine over him.
It imposed upon him a greater degree of vigilance. He was
required, under the circumstances, to exercise more than or
dinary care and caution to avoid injury; whereas, the plaintiff
in this case was only required to exercise ordinary care and
caution for his own protection. Neither of them exercised
any degree of care or caution whatever. Both proved, and re
lied upon the facts for recovery, that the engine was running
at greater speed than usual, and that the engine bell was not
rung. This was not enough. Both were guilty of contributory
negligence, which was the proximate cause of their injuries;
hence both were without remedy.
The doctrines and rules of law laid down in all the foregoing
cases, when applied to the conceded facts of the case under
review, fully sustain the action of the district court in giving

judgment of nonsuit. The judgment must be affirmed.
Judgment affirmed.
412
SUPREME C-ounr or COLORADO.

The People, etc., v. Curley.
THE PEOPLE EX. REL. C. C. HOWELL V. CURLEY.

1.
The legal existence of a municipal corporation will be conclusively pre
sumed under section 2743, General Laws, when, without question, a. board
of municipal oicers exercising their oicial duties has been maintained for
more than one year.
'
2. The creation of the oice of police judge fora city or incorporated town
is within the legislative authority; and the election Of such officer may, by
law, be conferred upon the municipal authorities of cities of certain classes;
but the creation of a judicial oicer by name merely, without dening his
duties and providing the manner of their exercise, does not constitute a court.
In the absence of statutory authority the city council cannot establi-h jurisdic
tion and provide for the exercise of judicial functions.
3. A police magistrate," under the laws of this State, must be ajustice of
the peace, duly elected and qualied, primarily, and by appointment or designa
tion by the propcr authorities of amunicipality, may become a police magis
irate" ea: oicio.
4. The otee of police judge, as denominat -d in sections 2714 and 2720 of
the General Laws, can only be established and fully equipped for service by
the legislature of the State; such otcer is not the creature of the munlcip-.1-l
authority of a city or townsuch municipal authority cannot invest the otiice
with any powers or functions of its own creation; and a person assuming as
police judge to exercise judicial functions under no other license than that
conferred by municipal authority, is guilty of usurpation.
Quo warranto.
Mr. Tnomss Gnome, for relator.
Mr. C. S. Tnouas, for respondent.

Sroun, J. This is an original proceeding by quo war-ranto,
to determine the authority of the defendant to exercise the
oice and functions of a court or magistrate under the title of

police judge of the city of Leadville. The complaint alleges
in substance that the defendant usurps the oice and franchise
of police judge of the city of Leadville; that as such assumed
judicial oicer he causes arrests to be made under warrants is
sued by him; that he imposes nes and costs, and commits to
prison in case of non-payment; that he declares his purpose to
__
__7
__
Dnesmnaa TERM, 1880.
413
continue such acts; that he is wholly without right to exercise
such power; that he claims power for such exercise from the
city council of Leadville; that said city of Leadville has
never been organized according to law; that such city council
has no legal existence and no power to appoint a police udge;
that there is no law of the State or ordinance of that city pro
viding for a police court, or any system of procedure or prac
tice for such court.
The answer denies all usurpation, and avers a right in the
defendant to hold and exercise the ofce; that he was duly
elected police judge by the city council; that he qualied ac
cording to law, and still lawfully holds and exercises the oftice;
that if the city of Leadville was not duly organized pursuant
to law, it is now too late to raise that question.
Upon the hearing it was stipulated by counsel for the rela

tor and the defendant respectively, that the city of Leadville
has, since its organization, exercised, and still exercises the
rights and powers of a municipal corporation, and has had,
and still has in office a board of municipal oicers exercising

the duties of their respective ofces, and that the legality of
the organization of the municipality has not been legally de
nied or questioned for more than one year since such organi
zation.
The stipulation, under section 2743 of "the General Laws of

the State, disposes of the question involving the legality of
the formation and organization of the city as a municipal cor
poration.
a
The essential question is, has the defendant lawful authority
to exercise the functions of a judicial oicer, to hold a court,
entertain jurisdiction of offenses, issue process, try accused
persons, impose penalties and inict punishment? If he pos

sesses such authority, whence is it derived?
The provisions of law directly affecting this question are

these:
I.
Constitution, Art. VI, Section I.
The judicial power
of the State shall be vested in a. Supreme Court, District
414
SUPREME Couar OF Conoaano.

The People, etc., v. Curlcy.
Courts, County Courts, justices of the peace, and such other

courts as may be created by law for cities and incorporated
towns.
Section 26. The General Assembly shall have power to pro

vide for creating police magistrates for cities and towns, who
shall have urisdiction of all cases arising under the ordinances
of such cities and towns.
These two sections embrace all the direct declarations of the
Constitution on the subject.
II. The General Laws, Chap. C. Section 2658. Appeals shall

be allowed from the judgment of any justice of the peace, or
mayor, or police magistrate, to the county court, in cases aris
ing under this act, or the ordinances of any city or town, as in
other cases.
Section 2661. Any and all justices of the peace and police
magistrates shall have jurisdiction in all cases arising under

the provisions of this act, or any ordinance passed in pursu
ance thereof, or the city council may designate one justice of
the peace who shall have such jurisdiction exclusively.

Section 2720. In cities of the second class, the city council
may elect a solicitor and a police judge.
The following provisions have an indirect bearing on the ques
tion:
Constitution, Art. V, Section 25.
The General Assembly
shall not pass local or special laws regulating the practice of

courts of justice, the jurisdiction and the duties of justices of
the peace, police magistrates or constables.

Constitution, Art. VI, Section 28. All laws relating to
courts shall be general and of uniform operation throughout
the State, and the organization, jurisdiction, powers, proceed
ings and practice of all the courts of the same class or grade
shall be uniform.
Section 2714 of the General Laws, provides, inter alia, that
in cities (of the rst class) The city council may elect a city
attorney or solicitor, a marshal, a police judge and a city engi
neer.
__
Each ot said oicers shall have such powers and perform
,-- ---- -
---_-1
415
such duties as are prescribed in this act, or by general laws, or

by ordinance of the city not inconsistent herewith.
From a consideration of these provisions of law, it will be

seen that the creation of police judge, or the establishment of
a court for a city or incorporated town with a udicial oicer,

under the designation of police judge, comes within the pur
view of the constitutional provisions above quoted.
It also appears that the legislature has, by general law, con
ferred upon cities of the class to which Leadville belongs,
authority for the election of an oicer in the mode and under
the name by which the defendant claims to have been ap
pointed and designated.

But here the legislature stopped, and has failed to dene the
powers of a police judge, to establish his jurisdiction, or pro
vide a mode of procedure for the exercise ofjudicial functions.

These are essentials of a court.
To create a judicial oicer, by
name merely, without dening his duties and providing the

manner of their exercise, does not constitute a court.
It is contended by counsel for defendant that a police

judge is comprehended in the term police magistrate, and
that as the latter has an established jurisdiction, the former is
in contemplation of law invested with the same powers.
Upon examination of all that our laws contain respecting
police magistrates, we are forced to conclude that this conten
tion of defendant is untenable.
Precisely what a police mag
istrate is under our statute, has nowhere therein been very

clearly dened. The rst General Laws of the Territory relat
ing to towns and cities, provided that actions arising under
the ordinances of any town incorporated under that statute
(1868), should be brought before any justice of the peace resid
ing within the town, or if there were none such, then before
any justice of the peace of the county, or other court of
competent jurisdiction.
By other court was evidently
meant some one already established by existing law, such as
the probate court. R. S. p. 615, Secs. 1 and 5.

'
Section 9 of the act relating to the city of Denver, approved
416
SUPREME CoUB'r or COLORADO.

The People. etc., v. Curley.
February 13, 1874, provides that the city council may designate
in such manner as they may determine, one person resident
within said city, upon whom, by the laws of the Territory,
shall have been conferred the jurisdiction of justice of the

peace, and such person when so designated by the city coun
cil, shall have jurisdiction in all cases arising under this act
and the ordinances of the city of Denver, except, etc. A
subsequent section of the same act (Ses. Laws, 1874, p. 2-88)
authorizes the arrest of persons committing any offense
against the laws of the Territory or the ordinances of the city,
and bringing such persons before a police magistrate or
other competent authority for examination, and refers to the
process therefor, issued by any police magistrate or by any
justice of the peace in criminal matters within the limits of
the city.
Next comes the constitutional provision, referring to po
lice magistrates for cities and towns, and thereafter the State
statute (Sec. 2661, G. L.) that any and all jiistices of the
peace and police magistrates shall have jurisdiction in all
cases arising under the provisions of this act, or any ordi
nances passed in pursuance thereof, or the city council may
designate one justice of the peace who shall have such juris
diction exclusively.
This provision of the State laws would seem to have been
borrowed in substance from the similar provision in the act
cited above relating to the city of Denver.
The word magistrate itself is a generic term, including many
public civil oicers, executive and judicial, from the president

of the United States down to justices ot' the peace. A police
magistrate, without other legal denition, supposes some of
cer of the State, or some municipal division thereof, invested
with auth0rityexecutive or judicial, relating to the adminis

tration of police or municipal laws. The persons referred to
in section 2661, as police magistrates, are not dened to be of
cers distinct from ordinary justices of the peace, except in so
far as they may, as such justices of the peace, have been desig
' DECEMBER TERM, 1880.
417
nated or appointed by the city council to have exclusive juris

diction of cases arising under the ordinances of such city. For
since the law has provided no mode of creating a police magis
trate except by the election of an ordinary justice of the peace,
and since by the express terms of the statute all justices of the
peace are vested with jurisdiction of all cases arising under the
ordinances of cities and towns, it follows that all-justices of
the peace are equally police magistrates, and may equally ex
ercise such function, unless one such shall have been appointed
by the city council to have and exercise exclusive police jiu'is
diction.
A police magistrate, therefore, under existing laws in this

State, must be a justice of the peace, duly elected and qualied
primarily, and as such becomes a police magistrate ea: ojioio.
In the agreed statement of facts led in this case, it is ad
mitted that the defendant at the time of his appointment of
police judge was not, nor is he now, a justice of the peace in
any precinct of Lake county, but at the time of his said ap
pointment was a private citizen, holding no oice of trust or
prot whatever. judicial or otherwise. It can not therefore be
maintained that the defendant is a police magistrate, as we
hold that ofce to be dened in the meaning of law.
If, then, the defendant has no authority as a justice of the
peace or police magistrate, what power and jurisdiction, if any,
does he otherwise lawfully possess?
The copy of the ordinances of the city of Leadville, which
have a bearing upon the case, and which have been certied
up to us, sets forth certain powers conferred upon the oice of
police judge, and prescribes certain forms of procedure for the

exercise of such powers. Among others, it is provided that
the police judge, in all matters pertaining to the duties of his
olce in judicial proceedings respecting which there is no spe
cic provision by the ordinances of Leadville, shall be gov

erned by the laws pertaining to and regulating the practice and
proceedings in ustices courts, so far as the same may be ap
pl1cable; and in the forms for summons and warrant for ar

27
418

rest, set out in the ordinance, it appears that the police judge
is to subscribe himself in such writs, not as police judge, eo
nomine, but as justice of the peace.
Thus we find that the jurisdiction and mode of procedure
provided for the defendant was prescribed in part by the city
council directly, and for the rest he was by the same authority
directed to select and appropriate so much of the general law
relating to another class of officers, as in his judgment and dis
cretion he should deem applicable and proper.
We have already seen that not being a justice of the peace,
he could assume the authority of such an office only by usurp
ation, and certainly it cannot be contended that the municipal
authorities of Leadville can confer statutory powers upon an
officer of their own election, for whom no statutory powers
have been prescribed by the legislature, even although they
may have been fully empowered by the statute to elect such
officer merely.
The city council possesses no lawful power to legislate for
such purpose. And this consideration applies to the powers

sought to be conferred upon the defendant by municipal ordi
nanceS.
True, Section 2714 (G. L.), relating to cities of the first class,
provides that the city council may elect a city attorney or so
licitor, a marshal, a police judge and a city engineer; each of
said officers shall have such powers and perform such duties as
are prescribed in this act or by the General Law, or by ordi
nances of the city not inconsistent herewith; and as we have
already stated, the city council of Leadville has attempted to

confer the powers and prescribe the duties of the defendant as
police judge, by the enactment of the ordinances referred to.

But this does not help the case, for aside from the question
of the legality of the re-delegation of authority to legislate re

specting such office, the insuperable objections arise that Lead
ville is not within the class of cities embraced in this section
(2714), and if even by any stretch of construction this section

could be made to apply to cities of the second class, that clause
419
relating to ordinances would be violative of the uniformity pro

vision of the constitution, unless it means, as we incline to
think it does, merely that in addition to, or as incident to the

powers and duties to be prescribed for such officers by Gen
eral Law, they shall take cognizance of cases coming under
such ordinances of the city as the council may adopt, not in
consistent with the General Law.
After authorizing the appointment of police judge by the

town council of cities of the second class, the legislature
stopped short of conferring authority to go further. An ob
vious reason for this is found in the constitutional provis
ion already cited, requiring uniformity in the jurisdiction and
practice of all courts in the State of the same grade or class.
Such an uniformity could not be made possible, were the
local authorities of each town and city vested with the power
of establishing courts, and prescribing the jurisdiction and
practice of its judicial officers, each having a local and lim
ited jurisdiction, each likely to be as distinct as the diverse
character of the different towns for which they were created,
and therefore necessarily sui generis.
It can scarcely admit of doubt that all courts and judicial
officers in contemplation of the Constitution are to be created,
established, limited, and the exercise of their powers provided
for by general law emanating from the legislative authority of
the State. A popular but mistaken impression prevails to
some extent, that all civil officers whose duties embrace munic
ipal laws, ordinances and regulations, are purely local or mu

nicipal in their character, and have no general relation to the
body politic of the State.
It must be borne in mind that there is a legal distinction be
tween State officers, that is, officers whose duties concern the
State at large, or the general public, although exercised within
defined limits, and municipal officers strictly, whose functions
relate exclusively to the particular municipality.
The administration of justice, the preservation of the pub

lic peace and the like, although confined to local agencies, are
*
420

essentially matters of public concern, while the enforcement of
municipal by-laws proper, the establishment of gas works, of

water works, the construction of sewers and the like, are mat
ters which pertain to the municipality as distinguished from
the State at large. Dillon on Municipal Corporations, Secs.
33. 34, 773.

In the case of The People ea: rel. etc. v. Hurlburt, 24 Mich.
82, it is said by the learned Chief Justice Campbell, in treating
of this distinction, that the preservation of the peace has al
ways been regarded both in England and America, as one of
the most important prerogatives of the State. It is not the
peace of the city or county, but the peace of the king or State
that is violated by crimes and disorders. The prosecution is on
behalf of the State. The trial is before tribunals created and
regulated by the State. The remission of punishment is by the
governor of the State. No municipality in this State was ever
allowed to determine for itself what court should be created
within it, or to regulate theirjurisdiction, or to delegate powers
of conservation of the peace to persons not indicated for that
purpose by the legislative direction. * *
Our constitution
condes the judicial power to no court but those organized under

the direct sanction and regulation of State law. No portion
of this power can be delegated to cities, and courts may be es
tablished to act in municipalities, and their judges may be
elected by the citizens, but their power must all be dened by
State legislation, which authorizes and establishes them, and
the number and qualications of jurors are under State con
trol. The whole judicial power is governed by Article VI of
the constitution, and it can not be lodged anywhere except as
authorized by that article. All process runs in the name of
the people of the State of Michigan.

The clause in Article VI of the Michigan Constitution, pro
viding for the establishment by legislative authority of munic
ipal courts in cities and towns, does not substantially differ
from the provision for like purposes in Article VI of our own
constitution.
Dncsnnaa TERM, 1880.
421
Upon the same point the Supreme Court of Virginia, in

dening city ofcers, classes among them city engineers and
oicers having control of streets, parks, water works, gas works,
sewers, hospitals, cemeteries, health inspectors and the like,
whose duties and functions relate exclusively to local affairs of
the city, and in the conduct and administration of which the
city is alone interested. On the other hand, it is said, there
are many oicers, such as city udge, sergeant, clerk, common
wealths attorney, treasurer, sheri, high constable and the
like, some of whom are recognized in the constitution, while

others are not. All these are generally mentioned as city oi
cers, and are even so designated in the constitution, but no
one has ever contended that either of them is in any way sub
ject to the control and removal by the mayor. The reason is,
that while they are elected or appointed for the city, and while
their jurisdiction is conned to the local limits, their duties
and functions in a measure concern the whole State. They
are State agencies and instrnmentalities operating to some ex
tent through the medium of city charters in the preservation
of public peace and good government. However elected or
appointed, and however paid, they are as much State olcers

as constables, justices of the peace and commonwealths attor
neys, whose jurisdiction is conned to particular counties.

Burch v. Ila/rdwicke, 30 Grat. 20 (32 Am. Rep. 640).
It thus appears to be clearly established that the adminis

tration ofjusticc, the preservation of the public peace, and the
protection of the rights of the citizen, although conded to
local agencies, are essentially matters of public concern, while
the enforcement of municipal by-laws and regulations as above
illustrated, are matters which pertain to the municipal corpo
ration merely, as distinguished from the State at large.
Under the construction we are constrained to put upon the
constitution and statute law of our State, and the application
of the principles laid down in the authorities above cited, we
are led to the conclusion that the office of police judge, as de

nominated in sections 271-L and 2720 of the General Laws, can
422

only be established and fully equipped for service by the legis

lature of the State; that such officer is not the creature of the
municipal authority of a city or townthat such municipal
authority cannot invest the office with any powers or functions
of its own creation. It has no power to confer jurisdiction or
prescribe a mode of practice and procedure for a court or any
judicial officer, which can only be done by the express provis
ions of General Law, nor can it in respect of a police judge
created under the provisions of the statute referred to, clothe
such officer in the judicial habiliments of a justice of the peace,
or any other judicial officer whose magisterial garb has been
made by the legislature expressly for the latter's use.
In the case of Deits v. The City of Central, 1 Colorado,

323, it was held that the name or term police judge, was an
unwarranted assumption of official title in one who had been
elected under the city charter as a justice of the peace, and
whose lawful powers were held by a majority of the court to
be those of a justice of the peace merely; but this case, al
though cited by counsel in the case before us, is little in point,
for the reason that the holding was based on the fact that no
officer under such denomination was authorized by the organic
act which expressly limited the judicial officers of the Terri
tory to a Supreme Court, District Courts, Probate Courts and
justices of the peace.

As a matter of rather curious historical interest, it may be
observed that under the provisions of the Territorial charter
for the incorporation of the town of Georgetown, in 1868, an
officer with the title of police judge was elected, who was
thereby made the presiding officer of the board of selectmen
or town council, and allowed the casting vote in cases of a tie;
he was also the judicial officer of the town, and constituted a
court with jurisdiction over all cases arising under the ordi
nances of the town, as well as in all civil and criminal pro
ceedings arising under the laws of the Territory to the same
extent as a justice of the peace; and in addition to all this, he
was made by the charter the chief executive of the town for
423
the purpose of enforcing his own judgments and decrees. Such

a rare combination of legislative, judicial and executive power
has probably been conferred upon but few favored citizens in
the history of our republican government.

For what reason the legislature failed to provide for a court
with its established jurisdiction and necessary machinery for
carrying out the purpose intended in authorizing the election
ot' a police judge by the corporate boards of cities, it would be
useless speculation to inquire.
We may fairly assume it to be a casus omissus, and such an
omission, it is held, can in no case be supplied by a court of
law. Brooms Legal Maxims, 46.
From the foregoing consideration of the law touching this
controversy, we reach the conclusion that upon the pleadings
and stipulatedfacts in the case, the defendant has failed to
justify, and is not entitled to exercise the rights, powers and
functions he claims and has assumed, regarding the oice in
question.
Since this is an original proceeding, brought to this court in
the rst instance, it is therefore considered and adjudged that
the defendant, John R. Curley, is guilty of usurping and un
lawfully holding and exercising the oice called police judge of
the city of Leadville, in the county of Lake, and the State of
Colorado, and that by the judgment of this court he, the said
John R. Curley, be ousted and excluded from said oice and
franchises, and any and all exercise thereof, and that he pay
the costs of this proceeding.
Judgment against the defendant.

Chief Justice ELBEBT, being absent, did not participate in
this decision.
424
SUPREME Comm or Cononano.

Wooten v. Seigel.
Wooron v. SEIGEL.
Exceptions taken to instructions en masse will not be noticed in this court
on appeal. nor will it avail to complain in this court of an instruction not ex
cepted to in the court below.
Appealfrom District Court qf1LasAnimaa County.

Tun case is stated in the opinion.
Messrs. WELLS, Smrrn & Macon, for appellant.

Messrs. YEAMAN & Jonu, for appellee.
STONE, J.
Nine instructions, embracing nearly as many
distinct propositions of law arising upon the facts in the case,
were given to the jury on behalf of the appellee.
To the giv
ing of these instructions the appellant excepted in the manner

following, as appears by the record: Which instructions the
court gave to the ury, to which the defendant then and there
excepted. Error is assigned upon a part only of these in
structions.
This court has more than once held that an exception taken
generally to instructions en masse will not be noticed by the
court upon review here.
Webber v. Emerson, 3 Col. 248; 11".
P. R. Uompany v. Ward, 4 Col. 30.
We are not therefore called upon to determine which, if any

one, of all the instructions thus excepted to, is erroneous. The
particular instruction, or portion thereof complained of, should
have been clearly pointed out by the exception.
Two several instructions asked by appellant were refused by
the court, and this refusal was excepted to, but the exception
fails to specify whether it is founded on the refusal of the court
to give each, or only one, of the two instructions prayed. The
court then, of its own motion, gave an instruction on behalf of
appellant which, though differing somewhat in language and
form, embodies in substance both the instructions pl'a_ycd and
Dscnmesn TERM, 1880.
425
Morris v. 1'\ raker.
refused, and to this instruction, so given, no exception was

taken. Error is assigned upon the giving of this last instruc
tion, but we think it cannot avail appellant to complain here
for the rst time of what was not excepted to in the court be
low; and since this instruction contained in substance the legal
propositions submitted in those refused, the appellant cannot
complain that he was prejudiced by such refusal.
The evidence upon the whole case, we think, clearly sup
ports the verdict and judgment rendered in the court below,

and the judgment is airmed accordingly.
_
Judgment arzned.
~_
MORRIS v. FRAKER.
The general law of this State permits the owners of cattle to allow them to
range at will, and in the absence of local acts, the owners of crops can only
recover damages done thereto by the trespasses of cattle, when the same are,
at the time of the trespass, inclosed by good and suicient fences.
Appealfrom County Court of El Paso County.

Messrs. Jaconsou & Dnom-za, for appellant.

Been, J. This was an action instituted by Fraker, the
plaintiff below, to recover damages for injuries done to his
growing crops of grain and potatoes by the cattle of the appel
lant.
The trial was by the court, a jury being waived by the par
ties, and resulted in the nding and judgment for the plain
tiff, in the sum of $100.
The defendant, Morris, offered to prove that the fence which

inciosed the plaintitl"s land was wholly insuicient to turn or
426
SUPREME COURT OF Conouxno.

Morris v. Fraker.
dinary stock running at large upon the range, and that it was
not such a fence as is required by law.
Plainti"s counsel objected to the testimony, but it was re
ceived under a stipulation of opposing counsel, that the court
might subsequently exclude it, and not consider it in the decis
ion of the case.
At the conclusion of the testimony produced upon the trial,
plainti"s counsel renewed the objection to the testimony con
cerning the condition of the fence, and it was excluded by the
court, to which ruling defendants counsel excepted, and now
assigns the same for error.
The appellants counsel took the position that the law of this
State permits the owners of cattle to let them run at large,
and that unless the fence surrounding the plaintitfs inclosure
comes up to the requirements of the rst section of the act of
March 22, 1877, entitled, An act concerning fences and in
closures in the State of Colorado (General Laws, page 461),
there can be no lawful recovery.
As the case is presented ea: parte, we are not informed of the
position of the appellee, further than as contained in the ob

jection interposed by his counsel to the evidence offered in
the court below. This objection was, that by law the plain
ti' was not bound to fence against or inclose his lands against
stock running at large in this State.
In regard to the statute cited by counsel for appellant, we
cannot say, in the present condition of this record, that it af
fords the proper standard by which to test the suiciency of
the plainti"s fence, for the reason that it does not appear
from the bill of exceptions that this statute has been adopted
in El Paso county by a vote of the people at a general election,
as required by the act. This is a fact of which we cannot
take judicial notice, but which should be proved and preserved

in the bill of exceptions, like any other fact in the case.
The
objection upon which the evidence concerning the suiciency

of the fence was excluded, raises the question whether the
rule of the common law in respect to closes, and the trespasses

I
Dacmrnsn TERM, 1880.
>5 l0 ~|
Morris v. Fraker.
of domestic animals thereon, is in force in this State; or

whether the general law of the State permits the owners of
such animals to allow them to run at large, being responsible
only for damages done by them upon lands inclosed by good

and suicient fences.
At common law the owner of a closewas notbound to fence
against the adjoining close, except by the force of prescription.
Every mans land, in the eye of the law, was inclosed and set
apart from his neighbors land, if n0t.by a visible and material

fence, by an invisible boundary existing in contemplation of
law. Every unwarrantable entry upon the soil of another,
whether by a 1nans cattle or by himself, constituted a trespass
by the breaking of his close. Every one was bound to keep his
beasts within his own close, and if they went upon the grounds
of others, the owners were liable in damages, unless they could
show that the lands trespassed upon should have been fenced,
either by prescription, agreement or assignment. 3 Bl. Com.
pp. 209, 211; 1 Addison Torts, Secs. 375, 379.
An act was passed by the rst Legislative Assembly of the
late Territory of Colorado, which declared that the common
law of England, so far as the same is of a general nature, to
gether with all acts and statutes of the British Parliament made
in aid of or to supply the defects of the common law, prior to
the fourth year of James I (excepting the second section of
the sixth chapter of 43 Elizabeth, the eighth chapter of 13
Elizabeth, and ninth chapter of 37 Henry VIII), which are of
a general nature, and not local to that kingdom, shall be the
rule of decision, and shall be considered as of full force until
repealed by legislative authority.
Acts 1861, p. 35.
This act was repealed in 1868, and afterwards, at the same

session, re-enacted, with the additional limitation that the com
mon law was adopted as far as applicable, and of a general

nature, etc. R. S. 1868, p. 105.
The latter act is still in force, and it is probable that the ob
jection to the introduction of testimony concerning the condi
tion and sufliciency of plaintiff s fence, was made and sus
428

Morris v. Fraker.
tained at the trial, on the theory that the common law rule
upon this subject was in force in this State by virtue of that
statute.
It must be apparent, however, to any person at all familiar

with the character of the country, its soil and climate, and with
the material interests and industrial, pursuits of the people,
that such a rule of law is wholly unsuited and inapplicable to
the present condition of the State and its citizens.
The total area of the State is upwards of 66,000,000 of acres,
a small proportion of which is arable land. Of this vast body
the mountains comprise nearly two-thirds, and the plains
somewhat more than one-third; and while the soil of the latter
is generally adapted to agriculture, only a small part is as yet
available for such use, owing to the insuiiicient supply of water
for irrigation, without which grain and vegetables will not
grow thereon in this climate.
I have no information as to the quantity of land now under

cultivation in the State.
The auditors report shows thata lit
tle over 2,000,000 acres were returned by the assessors of the
several counties in 1880, as being liable to taxation.
This is
supposed to embrace all agricultural, meadow and timbered
lands for which patents have been issued up to the date of the
last assessments, and it may be inferred that the number of
acres under cultivation is much less than these gures.
The
agricultural and meadow lands are for the most part situated
in the valleys, and adjacent to the streams which ow out from
the mountains, while the immense tracts of unwatered lands
lie out as commons, unimproved, and available for grazing pur

poses only.
These commons and the numerous parks in the mountains
furnish excellent grass for horses, cattle and other animals, and
stock raising, in consequence, has become one of the leading
industries of the State. The returns from the several counties

show that there were in 1880 more than one and one-half mil
lions of cattle, horses, mules and other domestic animals liable
to taxation in the State.
This industry would be seriously crip
429
Morris v. Fraker.
pled by the adoption of a rule requiring each owner to keep his

stock within his own close. It would be impracticable, as well
as impossible, for the several owners of these animals to provide
and inclose suitable pasture lands for their herds.
Nor is there
any necessity for such a rule. The commons are now owned
principally by the State and by the general government, and it
the grasses which grow thereon are not depastured, they will
waste and decay. And while it is impracticable to purchase and
fence sufficient pasture lands for the stock, the tillage and
meadow lands can be fenced, and, in point of fact, are now
inclosed in nearly all parts of the State.

It does not answer these objections to say that stock may be
herded upon the uninclosed lands, and thus be prevented from

trespassing upon cultivated lands, for herding stock upon the
lands of others would be in violation of the common law.
Herd laws, if desirable. must be enacted by legislative authority.
Another consideration which shows the necessity for fences,

and at the same time that the English law is unsuited to our
conditions and circumstances, is the fact that all animals which
range upon the plains are compelled to go to the streams for
water. The farm and meadow lands being usually upon the
banks and in the immediate vicinity of the streams, experience
has shown that it is impossible to prevent cattle and other ani
mals coming to the streams to drink, from trespassing and
feeding upon the succulent grains and tasteful herbage of the
farms and gardens, when the same are not protected by fences.
The fencing of such lands is therefore a necessity.
\vVe are also of opinion that the legislation of the State has
been inconsistent with the rule of the common law upon this
subject, which goes to show that it has not been relied upon
as the law of the State by the law-making power.
The rst Legislative Assembly that convened after the adop
tion of the constitution, passed a stock law which, among other
things, provided penalties against those who should wrongfully

drive or lead animals from their usual range; it enacted sundry
provisions respecting marks and brands; declared that all neat
430
Surmams COURT or COLORADO.

Morris v. Fraker.
stock over one year old found running at large without e

mother, and having neither brands nor ear-marks, should ha
deemed 'l{av0m'cks, and might be taken in charge by the cap

tain or foreman of a legal round-up, and sold under regulations
therein specied; and it authorized the county commissioners
of the several counties to order that cattle be gathered together,
or rounded-up, once a year in their respective counties.
This act plainly recognizes the general right of owners to
suffer their stock to run at large, with the exception of hogs,
which are expressly prohibited under nes and penalties. Gen
eral Laws 1877, p. 854.
This was equally true of the Territorial legislation on this
subject, for, while many local acts applicable to certain coun
ties were passed, restraining the running at large of stock at
certain stated times, the general tenor of the legislation recog
nized the fact that domestic animals were free commoners.
It is also to be observed, that whenever the citizens of one or
more counties desired to restrain stock from running at large
during the growing season, or otherwise, they did not rely
upon the common law, but resorted to the legislature and pro
cured a restraining act applicable to such county or counties,
as the session laws of the several sessions held from 1861 to
1877 abundantly testify.
Among the various Territorial acts which might be referred
to as inconsistent with the common law, is an act of 1864,
prescribing what should constitute a lawful fence in the Terri

tory, from the operation of which, however, certain counties,
were excepted, until they should by a vote, ratify it. In 1868
a law was passed prohibiting horned cattle from running at
large in certain counties, unless branded.
Severalacts were
passed at different dates, prohibiting the running at large of

inferior bulls and stallions, some of them including rams and
boars. In 1874 an act was passed providing that no stallion
should be allowed to run a tlarge in the Territory, except with
:1 l)'|7l(l of not less than ten mares; and another which pro
vided that a person owning twenty-ve or more cows, should
DECEMBER TI-)R.\I, 1880.
431
Morris v. Fraker.
not let them run at large without providing and letting run at
large with them not less than one bull of good American
graded stock.
Laws were also passed by the Territorial legislature estab

lishing fence districts, providing for common elds, regulating
the marking and branding of stock, providing for round-ups,
and making it acriminal offense to wrongfully drive stock from
its usual range. This legislation was evidently based upon the
theory that owners of cattle, etc., were authorized by the gen
eral laws in force, to permit them to go at large and gain their
subsistence wherever they could upon uninclosed lands. Such
legislation is wholly inconsistent with the old English law,
which requires no fences, but obliged the owner of stock to
keep his animals at all times within his own close.
W hy enact that cattle should not be permitted to run at large
unless branded, or that cows should not run at large unless ac
companied by graded bulls, or mares without stallions; or why

provide for annual round-ups of stock, if a general law was in
force which prevented such animals from running at large at
any season, or under any circumstances? And why make pro
visions for common elds, fence districts, and specifying what
shall constitute a lawful fence, if, under the law, no fences are
required? On this theory such legislation would not only be
useless, but absurd, as well.
The truth is, that, except as restrained by local acts, citizens
of Colorado have always exercised the right of permitting their

animals to range upon the commons and unoccupied lands, and
this right has been universally conceded by the people, and
recognized by their law-makers.
/ In an early day, in those portions of the State where many
persons were unable to fence their farming lands in consequence
of the great expense of fencing materials, the legislature a'ord
ed the people relief from the effect of the general law by the
passage of herd laws and other special acts, which were conned
in their operation to specied localities, and usually to certain
months of the year.
It is evident from the character of the leg
432
SUPREME Courvr or COLORADO.

Mon-is v. Fraker.
islation of both Territory and State, that the laws of England

have never been applicable to the condition of this section of
the country, and hence were not adopted by the legislature in
the act adopting the common law, so faras applicable. It fol
lows, therefore, that if the general law permits the running at
large of domestic animals, the right to recover damages for

their trespasses to crops, where no local or special laws are in
force, depends upon the sufficiency of the fences by which they
are inclosed to turn stock.
It was held in Boyer v. Sweet, 3 Scam. 121, and in Seeley v.
Peters, 5 Gil. 130, that in adopting the common law in the
State of Illinois, it was only adopted wherein it was applicable

to the habits and condition of the society, and in harmony with
the genius, spirit and objects ofthe institutions of the State, and
that the provisions of the common law, requiring the owner
of cattle and other animals to keep them on his own land, was
never in force in that State.
The same reasoning was employed, and the same ruling
adopted by the courts 0fConnecticut, Ohio and California, and
in our opinion, equally apply to Colorado. Certainly, the con
dition of this State is as illy adapted to the common law doc
trine as either of the States named. Stadwell v. Ritch. 14
Con. 293; Kerwacl'er v. The Ulevelainrl, Columbus cf} Cin
cmnatzl Railroad Company, 3 Ohio State, 172; Waters v.

illoes, 12 California, 535; Logan v. Gerlney, 38 California, 579.
The court remarked in the Ohio case, in considering the effect

of the common law rule, If an action for damages be main
tainable for every instance in which cattle and other live stock
of a person go upon the inclosed lands of another without ex
press license, more than nine-tenths of the business men of
the State become for this cause tort ferzsors every day of the
year, and liable to suit for damages.
To a certain extent the same would be true of our own citi
zens if the doctrine were held applicable to this State ; and
this consideration of itself furnishes the recluctio ad absurdum

of the proposition.
Dsenmnna TERM, 1880.
433
MeGan et al. v. O'Neil.
We must therefore hold that the general law of the State per
mits the owners of cattle to allow them to range at will, and that
in the absence of local acts, the owners of crops can only re

cover damages done thereto by the trespasses of cattle, when
the same are, at the time of the trespass, inclosed by good and
suicient fences.
The court below therefore erred in excluding the testimony
offered upon the trial, showing the condition of the plainti"s
fence. If the statute of 1877, prescribing what shall constitute
alawful fencein this State, has been adopted in El Paso county,
then such a fence as therein required, must be proved. lf

the act has not been adopted in that~county, then, to entitle the
plaintiff to recover for damage done to his crops by cattle run
ning at large upon the range, he must prove that his crops
were inclosed by a fence suicient to turn ordinary stock. The
judgment is reversed, and the cause remanded.

Reversed.
_~___
MCGAN ET AL. v. ON1:IL.

The essential provisions of a decree in chancery, under the old practice.
could not be settled in vacation.
Error to Probate Court of Boulder County.

Mr. Onnrs BLAKE, Mr. R. H. WlIITELE\', and Mr. GRANVILLE
Bnnxusv, for plaintiffs in error.
Mr. W. A. Hsnnnmsnoox, for defendant in error.
UPON petition for rehearing, the following opinion was ren
dered:
Been, J. This court, at a former term, reversed the decree
of the court below, on the ground that certain essential parts
28
434

McGan et al. v. O'Neil.
thereof were settled in vacation, for which reason it was held
that the decree must be treated as a final decree rendered in

vacation.
A review of the case upon rehearing has convinced us of

the correctness of the former ruling.
The point made and relied on in behalf of defendant in error,
that in contemplation of law, all the essentials of the decree
were settled in term time, and its form only settled afterwards,
which was simply a ministerial act that might be performed
by the clerk in vacation, cannot be sustained, either upon au
thority or upon the practice which formerly prevailed in chan
cery cases.
It was the duty of the solicitor, and not the duty of the
clerk, to draft the decree, and to submit it to the chancellor
for his approval.
Stephens v. Coffin, 39 Ill. 148; Schneider
v. Seibert, 50 Ill. 285; 1 Barbour's Ch. Pr. 340, and note 7.

The settling of the form of a decree was not a ministerial
act, but an important judicial act under the practice referred
to; and a decree was inchoate, and liable to be changed by the
chancellor in its essential provisions, until reduced to form
approved by him, and filed or recorded. It then only became
final, and could properly be said to be the decree of the court.
Such was the practice and rule of decision in the State of
Illinois, from whence we derive our chancery act; and the con
struction placed upon the acts by the courts of that State, has
usually been adopted by our courts. Hughes v. Washington,
68 Ill. 245. See, also, Burch v. Scott, 1. Gill & J. (Md.) 400;
Whitney v. Belden, 4 Paige, 140.
No presumption obtains that any of the essential provisions
of the decree in this case, except those mentioned in the min
utes entered in the judge's docket, were settled in term time.
Whatever conclusions the chancellor may have reached and
announced in respect thereto at the hearing, were subject to
be modified or rejected by him at any time afterwards, until a
decree should be drafted and approved. This was not done

during the term.
435
McGan et al. v. ONeil.
To hold that the essential provisions of a decree may be set

tled in vacation, is equivalent to holding that a decree may be
rendered in vacation, a doctrine in conflict with the decisions
of this court, which hold that neither valid judgments at law

nor decrees in chancery, could be rendered in vacation under
the old practice: Filly v. Cody, 4 Col. 109; Kirtley v. Mar
shall Silver Min. Co. 4 Col. 111.
Nor is the decree aided by the order entered at the hearing,

to the effect that when the decree should be drafted and ap
proved by the court, it should relate back and bear date as of
the day of such entry. The decree was not approved by the
court, and therefore did not become the act of the court.
It
was drafted and approved in vacation, which being a void pro

ceeding, it cannot be said that the decree became vitalized by
virtue of the order to this effect previously entered. This
would not only be to legalize a void act, but to legalize it in
advance.
The action of the court, at a subsequent term, in denying a

motion to vacate and set aside the decree, did not effect its
legal status in any particular.

As previously adjudged, the cause must be remanded for
further proceedings, without prejudice to the testimony taken
and preserved. In consequence of the imperfections of the
record, we are unable to pass upon the merits of the contro
versy, and to direct the entry of a proper decree. It does not
appear that all testimony produced upon the hearing has been
preserved in the record.
For the foregoing reasons, a new trial must be ordered.
Decree reversed.
436
Hughes v. The People.
HUGHES V. THE PEOPLE.

1. The right of self-preservation is inherent in the courts; the power to
punish for contempt is an incident to all courts, independent of statutory pro
visions.
2. Under the statute (section 2871, Gen. Laws), upon oath of any one
interested, ample power is given county courts to issue citations to compel
parties to appear and answer under oath touching their possession of property
belonging to an estate. But the statute is directory merely as to the manner
prescribed of bringing to the knowledge of the court information touching

such possession.
3. The law contemplates that upon application for change of venue, facts
shall be stated sufficient to inform the judge of the nature of the causes for
the change, and their alleged foundation.
4. Upon application for change of venue based upon the prejudice of the
judge, while facts are to be stated, they are not to be set out beyond what
are necessary where they involve the judicial acts or character of the judge.
5. A contempt may consist as well in the matter presented as in the man
ner of the person committing it.
6. No formal trial is had in cases for contempt; nor is the contempt
purged by an avowal that no contempt was intended.
Error to County Court of Clear Creek County.

Mr. J. Q. CHARLEs, and Mr. JoHN A. CoULTER, for plaintiff
in error.
C. W. WRIGHT, Attorney-general, for defendants in error.

STONE, J. Proceedings were had in the County Court of
Clear Creek County in relation to the settlement of a certain
estate. From the determination of some issue in controversy
therein, an appeal was taken to the district court, which, upon
a hearing thereof, found that certain moneys, goods and chat
- tels of the estate were in the possession of the plaintiff in error,
W. T. Hughes, and other persons named. It was thereupon

ordered by the district court that the said property be deliv
437
ered to the administrator of said estate; that said persons ac

count to the county court for the same; that the said Hughes
pay into said county court a certain sum of money received
by him from the sale of effects belonging to said estate, and
that he account to said court for the sums paid out on ac
count of the estate, and that this order of the district court be
certified to the said county court, to the end that the same be
enforced as the law directs. A citation was accordingly issued
out of the county court, requiring Hughes and the other de
fendants to appear in said court and show cause why they
should not comply with the order certified from the district
court. To this citation Hughes appeared by attorney, and
filed a sworn answer, and also an affidavit for a change of
venue, both of which papers contained charges assailing the
judicial conduct and integrity of the judge of the said coun
ty court in which the papers were filed. Thereupon a writ of
attachment against Hughes was issued to bring him before
said court, to answer for a contempt, for the use of the lan
guage employed in the documents filed as aforesaid.

Since the writ relates the principal facts upon which the
proceedings for contempt sought to be reviewed here are

founded, it is inserted entire, as follows:
STATE of Color ADo,
Clear Creek County.
The People of the State of Colorado to the Sheriff of Clear

Creek County, Greeting:
We command you to take William T. Hughes, and him
safely keep, so that you have his body forthwith before our
county court of Clear Creek County, at a term now being held
at the court house in Georgetown, for probate matters, to an
swer us for and concerning a contempt of our said court, in
this, to wit: on the 24th day of June, 1879, in the district
court in and for said county, at the regular June term thereof,
A. D. 1879, in a case then and therein pending, wherein Dan
iel Ernst, administrator of the estate of Jenny Akin, against
438

William T. Hughes, William J. Hurd and Frank X. Aicher;

after the trial of said case by said district court, the following
order was therein entered by said district court, to wit:
Now, at this day comes the plaintiff, by his attorney, G. G.
White, and the said defendants by their attorney, John A.
Coulter, and this cause came on to be heard, and is submitted
to the court without a jury, and after hearing all the testi
mony, and the court being sufficiently advised in the matter,
it is ordered by the court that the defendants, W. T. Hughes,
Wm. J. Hurd and Frank X. Aicher, deliver to the said admin
istrator all and singular, the goods and chattels belonging to

the said estate, viz: one bedstead, one bureau, one commode,
one rocking chair, one heating stove, one dining table, one
meat safe, one wash bowl, one bed spring, one mattress, one
bolster, two pillows, two bed spreads, three comforts, and all
other articles of personal property that they and each of them
have in their possession, or under their control; and it appear
ing that Charles H. Martin has in his possession certain prop
erty belonging to said estate: one trunk and contents, one
wash bowl and other articles, it is ordered that he deliver the
same to said administrator, and that the said defendants and
the said Martin are hereby required to account to the county

court of this county for all personal property they, or any of
them, have had, or may have, in their possession or under their
control, belonging to said estate. It is further ordered that
the said William T. Hughes pay into said county court the
sum of nineteen dollars, received by him from the sale of per
sonal property belonging to said estate, and had and received
by him from said estate, except as to such amount as he may
have paid out on account of said estate, and for which he will
account to said county court, and that the said defendants pay
the costs of this appeal and all other proceedings had herein;
and that the order be certified by the clerk of this court to the
said county court, and the same be there enforced as the law
directs.
-- - -
---
- -- - -
- -
439
That afterwards, to wit, on the 15th day of July, 1879, a

copy of the said order was filed in the said county court.
That afterwards, on the 5th day of August, A. D. 1879, by
order of the attorney of the estate of said Jenny Akin, a cita
tion, under the hand and seal of said county court, was duly
issued, requiring the said defendants, Wm. T. Hughes, Wm.
J. Hurd, Frank X. Aicher and Charles H. Martin, to be and
appear before said county court on the 6th day of August,

1879, then and there to show cause, if any they may have, why
they, and each of them, should not comply with the judgment and
order of said district court; and that said William T. Hughes
show what amount, if any, he has paid out on account of said
estate. Which said citation was duly served upon said Wm.
T. Hughes, by the sheriff of Clear Creek county, on the day
of the date hereof; and on said Frank X. Aicher, on the 6th
day of August, 1879, and on said last day duly returned in

court.
That upon last said date the said Wm. T. Hughes failed to
appear in said county court in person, but did appear by
John A. Coulter, Esq., his attorney; and upon information
received by this court from the said John A. Coulter, as such
attorney, the court, of its own motion, continued the time for
the appearance of the said Wm. T. Hughes to answer concern
ing said citation until Thursday, the 7th day of August, A. D.
1879, at 2 o'clock P.M. of said day. And on the said 7th day of
August, A. D. 1879, at 2 oclock P.M., and for more than one hour
thereafter, the said Wm. T. Hughes still failed to personally ap
pear before said court in obedience to said citation, and the order
extending the time of appearance of said Hughes in re
spect thereto; but the said John A. Coulter, attorney, did
appear for the said William T. Hughes, and presented to the

court to be filed, the pretended answer of the said William
T. Hughes, in words and figures following:
The defendant, in response to the citation issued by the
s
judge of the county court, within and for the county of Clear
Creek, Colorado, on the 5th day of August, A. D. 1879:
440
SUPREME Coonr or Cononano.

I.
That on the 26th day of June, 1879, an order was made
and entered of record in the district court, within and for the
county of Clear Creek, Colorado, against William T. Hughes,

Williain J. Hurd, Frank X. Aicher and Charles H. Martin,
and in favor of Daniel Ernst, administrator of the estate of

Jenny Akin, deceased, ordering these defendants to turn over
certain goods and to pay over certain moneys in said order
specied; and it was further ordered by the district court, that
these defendants have thirty days tole their bill ofexceptions
in said cause.
That the defendants, to wit: on the 30th day of June, A_
D. 1879, the said Daniel Ernst, administrator of the estate of
Jenny Akin, deceased, compromised, released and discharged,

and received in accord and satisfaction the goods in the posses
sion of William J. I-Iurd, one of the above-named defendants,
which said compromise, release and discharge is in words and
gures as follows, to wit;
DANIEL ERNST, ad1nin.,
v.
N o. 2,138.
W. T. Hnonns at al.
Plaintiff and defendants hereby compromise all matters in
dispute in this cause, and defendants agree to turn over to
plaintiff all goods of the estate of Jenny Akin, now in the pos
session of William J. Hard, and law the same no farther, for
which plaintiff agrees to absolve them from all existing and

further liabilities of whatsoever kind and nature, and the de
fendants be fully acquitted of the same.
DANIEL ERNST,
TV. T. Hnonas,
For Defendants.
June 30, 1879.

That defendants did, on the 30th day of June, 1879, fully
perform their agreements and undertakings, in accordance with
441
the above agreement, and did then and there deliver the goods
mentioned in the said release and discharge to the said Daniel
Ernst, administrator aforesaid, and that said release and dis
charge was madea part and parcel of the records of the dis
trict court of Clear Creek County, Colorado.
That the defendants, relying and believing that said release

and discharge, after their compliance with the same, would
wholly absolve them from any further or other liability in the
premises, and that the same were made in good faith, allowed
the time for ling bill of exceptions and making up the record
in the said district court within and for the county of Clear
Creek, Colorado, to pass without ling the same.
These defendants further state that said Daniel Ernst, ad
ministrator aforesaid, had full notice of the above release and
discharge, and the performance thereof on the part of these

defendants, and did duly accept the terms and conditions of
the same.
And these defendants further state, that the judge of the
county court within and for the county of Clear Creek, Colo
rado, had notice of the release and discharge as aforesaid, at or
about the time that the same was executed by the said Daniel
Ernst, administrator as aforesaid, and further charge, upon in
formation and belief, that G. G. White, attorney of the estate
of Jenny Akin, had notice of the release and discharge of these
defendants, on or about the time that said Daniel Ernst, ad
ministrator as aforesaid, cxecuted and performed the condi
tions of said agreement; and further charge, upon informa
tion and belief, that the said county judge and G. G. Wliite,
attorney for said estate, and Daniel Ernst, administrator afore
said, purposely and intentionally acquiesced in the release and
discharge given by Daniel Ernst, administrator aforesaid, un
til the time for perfecting a record of the case in the district
court had expired, and thus gain an unjust and undue advan
tage by these further proceedings in said cause.
Jonu A. Counrmz,
Attorney for Defendants.
442
SUPREME CourT OF CoLoRADo.

STATE Creek
of Color
ADo,
Clear
County.
SS.
W. T. Hughes, of lawful age, being first duly sworn, on oath

states he has read the foregoing answer and knows the con
tents of the same, and that the same are true of his own knowl
edge, excepting those matters stated on information and belief,

and as to those matters, he believes the same to be true.
W. T. HUGHES.
Subscribed and sworn to before, me this August 6, 1879.

ARTHUR D. BULLIS,
Notary Public.
That during the same session of said court, the said Hughes
still being absent therefrom, the said John A. Coulter, his at
torney, presented to the court the affidavit of said W. T.
Hughes, stating causes for a change of venue of said case,
which affidavit of said William T. Hughes is in words and
figures following, to wit:
STATE
ColorADo,
ClearofCreek
County.
ss.
In
County Court.
DANIEL ERNST, administrator, etc.,

V.
WILLIAM T. HUGHES, WILLIAM J.

HURD, CHARLEs H. MARTIN and
FRANK X. AICHER.
William T. Hughes being duly sworn according to law, on

oath states that he is one of the above named defendants in
the above entitled cause.
That he fears that he can not have a
fair and impartial hearing or trial before John C. McCoy,

county judge within and for the county of Clear Creek, Colo
rado, where the above entitled action is pending because
As affiant is informed and believes, and therefore charges
the fact to be, that the said John C. McCoy, county judge
of said county, and before whom the said action is now
pending, has prejudged the merits of this action against
these defendants; and further, as affiant is informed, and ver
443
ily
believes, that the said John C. McCoy is interested in the
result of these proceedings; and further, that the said John C.

McCoy, county judge as aforesaid, is so prejudiced against this
affiant, as to incapacitate him from doing this affiant justice in
any cause in which this affiant is a party or has any interest
whatever.
That this bitter and disqualifying enmity has existed for

over a year last past, and was greatly increased after the sitting
of the grand jury at the June term of the district court, before
whom, as is said, certain charges were preferred against John
C. McCoy, accusing him of taking and securing a bribe from
one G. G. White, in a cause pending in said county court, the
preferring of which charges the said John C. McCoy charges
affiant of being chief and instrumental in bringing about.
For these and other reasons, affiant says that a fair and im
partial trial cannot be had in said cause, nor of any issue aris
ing out of the same.
W. T. HUGHES.
Subscribed and sworn to before me, this August 6, 1879.

-
J. P. PosT,
Justice of the Peace.
Whereupon, upon information imparted to said court, the

time for appearance of said Hughes, under the said citation,
was extended to August 11, 1879, at 10 oclock A. M.
Such contempt consisting in
First. The failure of said Hughes to personally appear as
required by said citation.
Second. The allegations in said answer, sworn to by said
Hughes, contained in the eight last lines of said answer, are
disrespectful to the judge of said county court, untrue, scan
dalous and impertinent.
Third. The affidavit of said Hughes, stating causes for a
change of venue of said case, containing grossly scandalous,
untrue and impertinent allegations and outrageously insult
ing imputations against the said county court and the judge
thereof.
444

And have you then and there this writ, with an endorse
ment showing how you have executed the same.
Witness J. C. McCoy, Judge of said court, and the seal
thereof, at Georgetown, this 12th day of August, A. D. 1879.
J. C. McCoy,
County Judge.
To this writ the defendant, Hughes, filed his answer as fol
lows:
The defendant in this cause makes answer and alleges the

truth of the allegations in his affidavit for a change of venue as
is therein stated.
That said affidavit, excepting the last clause, commencing

at the words, For these and other reasons, etc., was prepared
by his counsel in this cause after a consultation with defend
ant, as to said John C. McCoy's enmity against defendant, and
as to its origin and cause.
That the facts set forth in said affidavit, the defendant be
lieves, has reasons to believe, and therefore charges the fact to

be, are true in each and every particular; and the facts therein
contained this defendant learned from Malcom McCrimmon,
David E. Dulaney, Arthur D. Bullis, Samuel Strousse, Frank
Bettman, William J. Hurd, Frank X. Aicher, Jacob Harvat,

A. K. White, all citizens and residents of Georgetown, in said
county and State; also, from I. N. Smith, of Idaho, in said

county; also, Alexander Lawson, of Lawson, in said county
and State; also, Henry Wilson, of Golden, in Jefferson county,
in said State; and by divers persons, residents of Georgetown,
in said county and State.
The citation issued in this cause does not require a personal
appearance; and if it did, defendant's excuse is, that his wife

has been very sick for a week last past, and required his per
sonal care and attention.
Defendant denies that he has intended to treat said county

court contemptuously or insultingly, or put scandalous matters
and facts in the court records, except so far as he has been ad
Dscmm an Term, 1880.
445
vised by counsel, and verily believes, are matters relevant\t0 the
cause before the court, and are susceptible of proof.

W. T. Huouas.
Our civil Code provides that the following acts or omissions

shall be deemed contempt :
'
First. Disorderly, contemptuous or insolent behavior
towards the judge whilst holding court or engaged in his udi

cial duties at chambers, or towards referees or arbitrators while
sitting on a reference or arbitration, tending to interrupt the
due course of a trial, reference or arbitration, or other udicial
proceedings.
Second. A breach of the peace, boisterous conduct or in
solent disturbance in the presence of the court or its immedi
ate vicinity, tending to interrupt the due course of a trial, or
judicial proceedings.
Third. Disobedience or resistance to any lawful writ,
order, rule or process issued by the court or judge at chambers.
Fourth. Disobedience of a subpoena duly served, or re

fusing to be sworn, or answer as a witness.
Fifth. Rescuing any person or property in the custody of
an olcer, by virtue of an order or process of such court or
judge at chambers.
Aside from inapt language and a faulty manner of expres
sion, these enumerated causes of legal contempt in the Code
are much narrower than the common law. The case of Stuart
v. The People, 3 Scam. 395, is cited as authority for the doc

trine that when causes for contempt are specied in a statute,
they are to be construed as a limitation upon the power of the
court.
The language of Breese, J., in that case is, that while
the statute affirms aprinciple that is inherent in all courts of

justice,
*
*
*
*
it may also, with great pro
priety, be regarded as a limitation upon the power of the
courts to punish for any other contempt. While we do not

think upon the whole ease this language intended to declare a
doctrine so broadly as is contended for it, there are, on the
other hand, ample authorities for the more reasonable doctrine
446

that such a statutory enumeration of causes as is found in our

Code,'whcn applied to the ever varying facts and circumstances
out of which questions of contempt arise, can not be taken as
the arbitrary measure and limit of the inherent power of a

court for its own preservation, and for that proper dignity of
authority' which is essential to the effective administration of
law.
A leading case of contempt, arising out of language ad
dressed to or in allusion to the court, or judges thereof, is that
In re Woolley, 11 Bush, 95, where the matter involving the

contempt was contained in an application for the rehearing of
a cause, and in which the court was charged by Woolley, an
attorney therein, with not having fairly examined the cause
which they had decided adversely to his client. In discussing
the limitation of the statute upon the powers of the court in
such cases, Judge Lindsay, in delivering the opinion, says:
The right of self-preservation is an inherent right in the
courts. It is not derived from the legislature, and cannot be
made to depend upon the legislative will. The power of the
legislative department to interfere with the manner in which
the judicial department shall protect itself against insults and
indignities, is denied by the Supreme Court of Arkansas,
State v. Morrell, 16 Ark., 384, and doubted by the Supreme
Court of the United States. Ea: parte Robinson, 19 Wallace,
510.
This doctrine, which we regard with decided approval, is
also declared in the case of The People v. Wilson, 64 Ill.
195, where it is held that the power to punish for contempt
is an incident to all courts of justice, independent of statutory
provisions, citing numerous authorities, and drawing the
same inference from the opinion of Mr. Jnstice Breese in
Stuart v. the People, supra, in declaring that the statute
afiirins a principle inherent in a court of justice to defend
itself when attacked, as the individual man has a right to do
for his own preservation.
It is, perhaps, unnecessary here to lay down in extenso the
ll
M
g
-~--_
J an-I-1
447
common law definitions of a contempt of court; the general

doctrine, as announced by Mr. Bishop in his work upon Crim
inal Law (2 Vol. Sec. 252), is, that There is no exact rule to
define these contempts; but any disorderly conduct calculated
to interrupt the proceedings; any disrespect or insolent behav
ior toward the judges presiding; any breach of order, de
cency, decorum, either by parties and persons connected with
the tribunal, or by strangers present; or, a fortiori, any
assault made in view of the court, is punishable in this sum
mary way.
In Charlton's Case, 2 Mylne & Craig, 316, it is said by the

Lord Chancellor, Every writing, letter or publication which
has for its object to divert the course of justice, is a contempt
of the court. *
*
*
* Every insult offered to a
judge in the exercise of the duties of his office is a contempt.

In the celebrated case of Commonwealth v. Dandridge, 2
Va. Cases, 408, it is said, upon the authority of Blackstone and
other sources of the common law, that Every court of record
has a right to punish contempts offered to it, by fine and im
prisonment. This power is given to the courts, not for the

private advantage of the judges who sit in them, but to pre
serve to them that regard and respect which, without such au
thority, is entirely lost among the people, and for this reason
the power results from the first principle of judicial establish
ment, and must be an inseparable attendant upon every such
tribunal. *
*
* These contempts may be committed
by speaking or writing contemptuously of the court or judges

acting in their judicial capacity, or by saying or writing any
thing which is calculated to prejudice the public mind respect
ing any suit depending in court, or tending to scandalize the
judge respecting his judicial acts or character.

Of the numerous errors assigned by the plaintiff, we need
only notice those which are material to a proper review of the
questions affecting the validity of the judgment.

The first five assignments go to the jurisdiction of the
county court in the cause or matter pending at the time the
448

contempt was committed. It is insisted by plaintiff, that the

cause, if there was one pending, was pending in the district
court; that it was res adjudicate in that court, and the order
of the district court satised by reason of the agreement of
compromise between Ernst and Hughes; that the judicial
power of the district court was attempted to be'delegated to

the county court in the premises, and that the county court was
acting ministerially and not judicially, in seeking to carry out
the nding and order of the district court, and that therefore
the contempt, if any was committed, was against the district

court alone.
These propositions can scarcely be regarded as serious argu
ments; they are rather assumptions without valid foundation
in law or fact.
There can be no question as to the jurisdiction
of the county court in the premises to complete the adminis

tration of the estate. The statutory proceedings and practice
of such courts respecting the disposition and settlement of
estates is so plain, that we need not discuss its application to
the case. The written release stipulated between Ernst
and plaintiff in error, was a palpable subterfuge; it bound no
one, nor settled anything outside the approval and records of
the county court, wherein the cause was then pending.
It is assigned for error that the court had no power to issue

a citation, and that the non-appearance in answer thereto was
no contempt. Ample power is given by section 2871 of the
General Laws, to issue citations to compel parties to appear

and answer under oath touching their possession of money or
property belonging to the estate, when it shall appear by the
oath of any one interested, that any person has such moneys
or property in possession, and on failure to comply with the
order of the court, such person may be committed therefor.
As to this prescribed manner of bringing to the knowledge of

the court information respecting such possession of property
of the estate, the statute is directory, and such knowledge
when derived by the court, by authority of equal dignity with

such aidavit, should be regarded as a sufcient warrant for
449
the process of the court. In this case the court did not need
information by the oath of any person, when the possession
of money belonging to the estate was shown to be in posses
sion of the plaintiff in error, by a judicial finding of the dis
trict court, and which had been certified to, and made a mat
ter of record of the court issuing the citation. If by reason

of sickness or other good cause plaintiff had been prevented
from appearing to the citation, the court, upon a proper and
respectful showing, should, and undoubtedly would, have given

all necessary time and opportunity for compliance with the
order.
And in fact the court in this case did continue the
hearing one day after the return of the citation, for cause
shown, yet plaintiff still refused to appear in person.
Courts possess a wide latitude for the exercise of discretion
in all such cases. Where a spirit of respect for the court exer
cising judicial authority, good faith and honest intent are
shown by a party subject to such authority, these circumstances
are one guide in directing the exercise of judicial discretion, while
a contrary state of facts is another guide pointing out a different
course of action. In this case the judge of the county court
is himself best qualified to judge whether the refusal to
comply with the order of the court was intended as a con
tempt, or was in fact, a contempt of the judicial authority.
As to the matter contained in the papers filed, which were
adjudged by the court below to be matter of contempt, they
need no lengthy discussion, since they consist of language ad
dressed to, and used of and concerning, the judge of the court,
and in respect of his judicial acts.
First. As to the answer filed to the citation, the plaintiff in
error directly charges the judge of the court wherein the cause
was pending with colluding with the administrator and the at
torney for the estate, for the purpose of gaining an unjust
and undue advantage against the plaintiff in error, who was
then a party defendant to the proceedings, as well as attorney
for his co-defendants therein. The language employed can
have but one meaning. It implies judicial corruption and un
29
450

just oppression on the part of the judge presiding. It comes

within the definitions of disrespectful, contumacious, insolent
and contemptuous language and behavior toward the court, or
judge thereof respecting his official conduct. It was in the
face of the court, and warranted the judge in taking cognizance
of it summarily, as though the words, instead of being writ
ten and read in court, had been spoken in faciae curiae by the
plaintiff in error appearing in his proper person. And more,
for the writing showed deliberation and intent.
Second. Regarding the language used in the application
for a change of venue, it can only be considered as a flagrant
and wanton repetition of the contempt by the answer. It is
somewhat difficult to lay down any general rule as to how far
a party or his attorney may go in setting out facts in support
of an application for a change of venue, based upon allega
tions of the prejudice of the judge. Our law up to 1876 (see
R. S. p. 634), provided that if either party in any civil cause
*
shall fear that he will not receive a fair trial in
the court in which the action is pending, on account that the

judge is interested, or prejudiced, * * * or that the ad
verse party has an undue influence over the minds of the in
habitants, * * * or that the inhabitants of such county
are prejudiced against the applicant, so that he cannot expect
a fair trial, * * * such party may apply * * * by
petition, * * * accompanied by an affidavit verifying the
facts in the petition stated, etc.
The statute of 1876 amended this, by requiring the peti
tioner for change of venue in any cause to state and set
forth in his petition the fact, or facts, on which his fear that
-
he will not receive a fair trial in the court wherein the cause
is pending may be founded, and requiring such petition to be
supported by the affidavits of three credible persons. Our

present Code provision is identical with the old law as it ex
isted previous to 1876, except that it gives the judge to whom
the petition is addressed, discretion to allow or deny the ap
plication, as he may believe that the cause stated does or does
451
not exist. Upon the law as it stands, notwithstanding the repeal

of the act of 1876, we think it is contemplated that facts shall
be stated and set forth sutlicient to inform the judge of the
nature of the causes and their alleged foundation, and this

court has expressly so ruled in the case of Christ v. the Peo
ple, 3 Colo. 394.
To the same effect is the case of ea: parte
Curtis, 3 Minnesota, 274.

It is, however, easy to see that when the application is
based on the prejudice of the udge, much less detail of facts,
will generally, if not always, be necessary, than where the

prejudice of the inhabitants of a whole county or district is
averred. And the Illinois statute of 1874 requires that such
facts be set out only when the prejudice of the inhabitants or
the inuence of the adverse party is made the ground of the
application, while, in case of alleged prejudice of the judge,
no facts are required to be stated. Puterbaughs Pl. and Pr.
C. L. p. 750.
As stated, however, we conceive that in all cases necessary
material or pertinent facts should be set out; in case of the
prejudice of the judge, his attention would thus be called to
some circumstance which he may have forgotten, or of which
he was entirely ignorant, but which the petitioner might con
ceive to be a cause of prejudice, and a sense of justice requires
that he should not be baldly charged with prejudice against a

suitor while left in surprise and wonderment at a cause he
may not imagine, or may believe exists only in the imagina
tion or wicked invention of the applicant, and without the
necessary knowledge upon which to act in the exercise of that
discretion to allow or deny the charge, a right which is ex
pressly given such judge by the Code provision.
While, then, facts are to be stated, they are not to be set
out beyond what is necessary where they involve the judicial
acts or character of the judge; and we may say that it would
never be necessary to set out facts that would in themselves,
or by the manner of stating them, be calculated to scandalize

the court or judge thereof, or bring them into public con
tempt.
452

A contempt consists as well in the manner of the person

committing it, as in the subject-matter of its foundation;
matters which, if true, would in their very nature be scandal
ous, may be presented, hinted at or brought to the attention
of the court in so respectful a manner, that no judge would
ever think to construe a contempt therefrom; while, on the
other hand, it is easy to see, when under the guise and pre
tense of setting out privileged and necessary matters, circum
stances are detailed, and scandalous and insulting charges and
inuendoes are made and insinuated, upon pretended informa
tion and belief, in a manner that bears the unmistakable ear
marks of malice and deliberate contempt.

These remarks, we think, will indicate sufficiently clear the
path which each attorney is expected to advise and follow in
choosing the language he employs in papers filed in court, as
well as in speech addressed directly to the judge.
As a member of our most ancient and honorable profession,
as an officer of the court itself, and as an exemplar of the law
abiding citizen and gentleman, he must be his own intelligent
judge of whether it is ever necessary to employ language or
exhibit demeanor which a discriminating and upright judge
would regard as a contempt.
It is further assigned for error, that the court rejected testi
mony offered to prove the truth of the matter charged in the
writings.
After what we have already said, it is scarcely necessary to

add that this assignment is untenable. No formal trial is had
in such cases. "Where the matter constituting an alleged con
tempt is brought to the knowledge of the court or judge by af
fidavit, as in case the contempt is committed not in presence
of the court, the person so charged or informed against, when
brought before the court to answer, is interrogated, where there
is a necessity for so doing, in order both to inform the court
& of the very truth of the matter, and to give the accused an op
portunity to purge the contempt if he will, or can; but the
proceeding is, in all cases, summary before the judge, or court,
453
and without the intervention of a jury.
2 Bish. Cr. L. Sec.
269.
Nor is the contempt purged by an avowal that no contempt

was intended. The question of contempt does not depend on
intention, although, where the contempt was intended, this is
an aggravating feature, which goes to the gravamen of the
offense.
Where a receiver had unlawfully appropriated money of

the receivership, and was ordered to restore it, and in his an
swer stated that he had no intention to do wrong, but, by
reason of poverty, was unable to make restitution, and was
thereupon conmitted for contempt, it was held, inter alia,
that a disclaimer of intention does not purge the contempt,
nor does a restitution in such case; that the commitment was
not alone to compel restitution, but to punish for the offense.

Cartwright's Case, 114 Mass. 230, and to the same effect as
to intention is the opinion in Sturoc's Case, 48 N. H. 428;
The People v. Wilson, 64 Ill. 194.
-
In this last case, it is held that the construction and ten
dency of the published matter or act constituting the offense,

as bearing on its character as a contempt, are matters of law
for the court.
Words apparently scandalous or offensive, but susceptible

of a different construction, may be explained by the speaker
or writer, and he be relieved of the charge of contempt, on
sworn disavowal of intent to commit it; but when the words
are necessarily offensive and insulting, such disavowal, while

it may excuse, cannot justify. In re Woolley, supra.
In Dandridge's Case, from which we have already quoted,
the court say they can not but feel it a delicate task to de
fine and decide upon the extent of their own powers, nor
be ignorant that the judgment they are called upon to ren

der may expose them, on the one hand, to the imputation
of timidity and irresolution, or, on the other, to that of usur
pation and tyranny.
* * * Courts, their officers and process, are shielded
-
454

Hughes v. The People
from invasion and insult, not from any imaginary sanctity in

the institutions themselves, or the persons of those who com
pose them, but solely for the purpose of giving them their
due weight and authority, and to enable those who admin
ister them to discharge their functions with fidelity and ef
fect.
Much has been said at times in this country about the

futility of attempting, by proceedings for contempt, to com
pel a respect for a court or judge, which is either not enti
tled to it, or is unable to create it by force of deserving
conduct and character.
Such considerations would not be without force, were all
men honest, intelligent, reasonable and appreciative; but, as

was said by one of the most observant of jurists, to suppose
that the personal character of the judge would be a sufficient
guaranty against the stings of disappointed suitors, or the
insolence of the haughty, the rash, the malicious and the con
temptuous, would be to imagine a state of society in which
none of these traits existed, or were possible, and which would
render the office of a judge wholly unnecessary.
We have carefully considered this whole case, together with

the briefs, arguments and citations of counsel, and are unable
to find anything in the record of proceedings of the court be
low of which the plaintiff in error can rightfully complain.
He must accept the consequences which his own conduct
directly invited. The judgment is affirmed.
Affirmed.
Mr. Justice BECK, having been judge of the district court
wherein some of the proceedings involved in this case were
had, did not participate in this decision.
DECEMBER T1-mu, 1880.
455
The People, etc., v. Rucker.
Tm-2 PEOPLE EX BEL. TUCKER v. Rccxnn.

1. Where the people, by their constitution created the General Assembly,
and declared that the legislative power should be vested therein, they con
ferred the full and complete power as it existed and rested in themselves, sub
ject only to the restraints and limitations of their own constitution and the
Constitution of the United States.
2. Plenary powers in the legislature for all purposes of civil govemment is
the rule. Aprohibition to exercise a particular power is an exception. In
inquiring whether apn.~.'ticula.r statute is constitutional, it is for those who
question its validityto show that it is forbidden, either by positive provis
ion or necessary implication. In cases of doubt, every possible presumption
and intendment will be nnule in favor ot' the constitutionality of the act, and
the courts will only intgifsre in cases of clear and unquestioned violation of
the fundamental law. Courts are not at liberty to declare an act void, be
cause in their opinion it is oppos.-d to the spirit supposed to pervade the con
stitution, but not expressed in words.
3. The term county courts" in the constitution of Colorado (Secs. 22
and 23, Art. VI). has a distinct meaning, and designates a distinct court, and
cannot, by any rules of interpretation, be made to include the criminal
court.
4. The constitution of Colorado, neither by express words nor necessary

implication, requires that all judicial oflicers shall be elected ; and in the ab
sence of constitutional restraint the power of the General Assembly to declare
the office of criminal judge e.ther elective,or appointive, in their discretion,
was plenary.
5. The oice of criminal judge is provided for " in article VI of the con
stitution, and is therefore includ-rd in section 29 of said article. An existing
oflioe without an incumbent may be vacant, whether it be a new or an old
one. The legislative authority to create the office of criminal judge, and vest
the original appointment in the governor, by and with the advice and con
sent of the Senate, is undoubted. The Senate not being in session when the
aet became a. law, the governor had no right to appoint, and the office exist
ing without an incumbent, was vacant. This vacancy " can be lled only
by appointment by the county commissioners, as provided in Sec. 29, Art. VI

of the constitution.
6. In so far asthe act provides that vacancies in the olce of judge of the
criminal court are to be lled by the governor, it is in conict with the con
stitution, and the constitution must be enforced as the paramount law. But
the entire act does not therefore necessarily fail. Where part of an aot only
is unconstitutional, and when this is stricken out, if that which remains is
complete in itself, and capable of being enforced, wholly independent of that
456
Surnmus Connr or COLORADO.

which is rejected, it will be sustained. The General Assembly had full power
to establish a criminal court, provide for the appointment of a judge, and x
his term of office ; and that portion of the act decreed unconstitutional being
supplied by the constitution, the act can be enforwd.
Quo warranto.
Messrs. Otmron Rsso, A. S. Wnsrou & J. B. BISSELL, for
,relator.
Messrs. C. S. Tuosxss, M. L. RICE & H. B. Jot-msou, for re

spondent.
ELBERT, C. J.
This is an information in the nature of a guo
warranto, and is submitted on demurrer to the petition.
The
controversy arises under an act passed by the last General As
sembly creating and establishing a criminal court in Lake

county.
Warrant for the act is found in Sec. 2}, Art. VI of the Con
stitution : The General Assembly shall have power to create
and establish a criminal court in each county liaving a popula
tion exceeding fteen thousand, which court may have'concur
rent jurisdiction with the district court in all criminal cases
not capital; the terms of such courts to be as provided by law.
The rst section of the act establishes in the county of Lake
a criminal court, to be called the criminal court of Lake
county.
The second section provides that The judge of said court

shall possess the qualications prescribed by la\v for judges of
the district court; that he shall be appointed by the governor
by and with the consent and advice of the Senate; also that
all vacancies occurring during the recess of the Senate may be
lled by appointment by the governor.
The act was approved March 4, 1881, after the adjournment
of the Assembly.
On the same day the governor appointed
Henry A. Day judge of the court, who qualied upon the 5th
of March. Thereafter, and on the 7th of March, the county
ll
_,}i**' '

457
.
commissioners of Lake county, appointed A. W. Rucker, the

respondent, judge of said court, who also qualied.
To the petition showing these facts, two grounds of de
murrer are stated:
First.
That under the constitution and laws of the State,
the appointment of criminal judge by the governor was null

and void.
Second. That under and by virtue of the constitution and
laws of the State, the board of county commissioners ot' the
county of Lake had full power and authority to appoint de
fendant to said oice.
This calls in question the constitutionality of the act of the
General Assembly, which, the respondent claims, violates two
distinct and separate constitutional provisions, to wit: Sec
29, Art. VI (as amended), and Sec. 9, Art. XIV. They will
be given in full when we come to consider them.
Before entering into the inquiry as to the constitutionality
of the act in question, a recurrence to, and clear understand

ing of, two leading propositions will aid in clearing the way to
correct conclusions.
(1) Touching the powers of the General Assembly, it must
be remembered that, when the people by their constitution
created that body, and declared that the legislative power should
be vested therein, they conferred the full and complete power
as it existed and rested in themselves, subject only to the re
straints and limitations of their own constitution and the Con
stitution of the United States. Cooley Con. Lim. 87.
Chief Justice Demo says: The people, in framing the
Constitution, committed to the legislature the whole law
making power of the State, which they did not expressly or
impliedly withhold. Plenary powers in the legislature for all
purposes of civil goverment is the rule.
A prohibition to
exercise a particular power is an exception. In inquiring,

therefore, whether a particular statute is constitutional, it
is for those who question its validity to show that it is for
4-58
SUPREME Couar or COI0R1\DO

hidden.
inhibited.
I do not mean that the power must be expressly
Every positive direction contains an implication against

everything contrary to it, or which would frustrate or disap
point the purpose of the provision, the frame of the govern
ment, the grant of legislative power itself, the organization of
the executive authority, the erection of the principal courts of

justice, create implied limitations upon the law-making au
thority as strong as though a negative was expressed in each
instance; but, independently of these restraints, expressed or
implied, every subject within the scope of civil government is
liable to be dealt with by the legislature. People v.,1)/-aper,

15 N. Y. 543.
(2) Touching the relation which the judicial department
sustainstothe legislative, it must be remembered that they
are co-ordinate departments of the government, of equal dig

nity. Each is alike superior in the exercise of its proper func
tion. If an act of the legislature is held void, it is not be
cause the judges have any control over the legislative power,
but because the act is forbidden by the Constitution, and the
Constitution must be enforced as the paramount law. (Cooley
Con. Lim. 160.) It is nevertheless apparent in such a case,
that the decision of a co-ordinate department is indirectly over
ruled. Accordingly, courts have uniformly held, that while
the duty in a proper case can not be declined, the power is to
be exercised with caution and reluctance.
Mr. Sedgewick thus states the doctrine: The leading rule
in regard to the judicial construction of constitutional provisions
is a wise and sound one, which declares that in cases of doubt,
every possible presumption and intendment will be made in
favor of the constitutionality of the act in question, and that

the courts will only interfere in case of clear and unquestioned
v'iolation of the fundamental law. It has been repeatedly said
that the presumption is that every State statute, the objects
and provisions of which are among the acknowledged powers
of legislation, is valid and constitutional, and such presump
__
iii
459
tion is not to be overcome unless the contrary is clearly dem

onstrated.
Sedgewiek Stat. and Com. Law, 409.
These well-settled propositions of legislative power and

judicial practice will be found to simplify the inquiry as we
advance.
Counsel for the respondent, in their argument, challenge

the constitutionality of the act in question upon two grounds:
(1) That under the constitution the ofoe of criminal judge
must be elective, not appointive.
(2) That in either case
the power to ll vacancies in the ofce could not be vested in

the executive, as by the terms of the constitution it is vested
in the board of county commissioners.
It would, perhaps, be sufficient for the purposes of this case

to determine the last point only.
In view, however, of the
public interest, as well as the interests of the parties, we con
sider both. Less than this might result in the necessity for
another action.
Whether judicial positions should be lled by election or ap
pointment, has long been a matter of much controversy.
It
is a question upon which great contrariety of opinion exists,
and upon each side of which the ablest pens have been em
ployed.
It would be difficult to believe that any convention of dele
gates convened for the purpose of framing a constitution for a
new State would adopt either the elective or appointive system
without a contest. Any adoption of one or the other system
could scarcely be casual or accidental, but the result of deliber
ation and debate.
In this view counsel for the respondents presented a most

able and ingenious argument, to the effect that there is sufcient
in the constitution to justify the inference of a declaration by
the people in favor of an exclusively elective judiciary.
To ascertain the will of the people in respect to their judi
ciary, we turn to that subdivision of their constitution. There,
if anywhere, it is fair to expect to nd it declared.
460

It is not contended that there is any provision in express

terms declaring all judicial oieers elective.
Judges of the Supreme Court, judges of the district courts,
judges of the county courts, district attorneys and justices of
the peace, are all made elective in express terms, but here the
constitution ceases to speak upon the subject. Criminal courts

and police magistrates are provided for, but whether they are
to be elected or appointed the constitution does not say, unless
by implication.
The last clause in section 29 of this article is as follows:
Judges of the Supreme, district and county courts appointed

under the provisions of this section, to ll vacancies, shall hold
otce until the next general election, and until their successors
elected thcreat shall be duly qualied.
Had the Constitution failed to provide elsewhere for the

election or appointment of the Supreme, district and county
judges, there would have been found in the language of this
provision concerning vacancies, a necessary implication that
they were to be elected. It would be a necessary implication,
because the constitutional provision could only be operative by
their being elected.
If the term county courts, as used in this provision, is to
be regarded as a general term, including the-criminal court as
well as the county court, so-called, then this implication at
taches to it, and it must be held as an elective oice. \Ve are
satised, however, that the term county court as here used,
was not intended to designate or include the criminal court.

The criminal court may be in a certain sense a county court,
but such is not its constitutional name.
Sections 22 and 23 of this article establish county courts;

provide for the election of a county judge in each county, who
shall be judge of the county court; declare them courts of rec
ord, and prescribe their jurisdiction under this distinctive
name, title and designation. This distinguishes it as the
county court of the constitution, and xes with certainty the
courts intended in the 29th section.
4___;=$_-._.._-.;.. .
Having a distinct mean

The
461
People, etc., v. Rucker.
ing, and designating a distinct court in sections 22 and 23, we

cannot by any rule of interpretation assign it another mean
ing and make it include another court in section 29.
Counsel for respondent cite section 9, article XIV, in sup

port of their proposition.
This article is entitled counties, provides for the removal

of county seats, the establishment of new courts, the election
of county commissioners, clerk and recorder, sheriff, coroner,

treasurer, superintendent of schools, county surveyor and asses
sor. It concerns officers which are peculiarly county officers,
by reason of their connection with and administration of county
affairs. Far removed from the article concerning the judici

ary, in section 9, of an article concerning counties, con
cealed under the general term county offices, counsel for
the respondent discover the criminal court, and that it is elec
tive. The rule that we stated at starting, lays its axe at
the roots of this argument. Any implication that could be
justly drawn from this article falls far short of that clear and
necessary implication demanded by the rule. So, too, any im
plication drawn from what counsel call the whole spirit of
the Constitution, falls far short of the same imperative re
quirement.
It has been decided that courts are not at liberty to declare
an act void, because in their opinion it is opposed to a spirit
supposed to pervade the constitution, but not expressed in

words. People v. Fisher, 24 Wend. 220; State v. Staten, 6
Cald. 233; Cooley's Con. Lim. 171.
After a careful examination, we are unable to find either ex
press terms or necessary implication to support the proposi

tion that all judicial officers are to be elected. Both of these
essentials are wanting; and in the absence of constitutional
restraint under the rule laid down, the power of the General
Assembly was plenary, to declare the office of criminal judge
either elective or appointive, at their discretion. In this re
spect the act in question is free from constitutional objection.

In respect to the second objection made to the act, I do not
462

understand counsel to question the power of the General As

sembly to vest in the governor authority, with the advice and
consent of the Senate, to fill the office of criminal judge origi
nally. The question made involves alone the power to fill va
cancies during the recess of the Senate.
The act provides that The governor shall, immediately after
this act takes effect, appoint, with the advice and consent of
the Senate, a person possessing the necessary qualifications as
judge of said court, and all vacancies in said office shall be
filled in the same manner; provided that all vacancies occur
ring during the recess of the Senate, may be filled by appoint
ment by the governor, but such appointment shall expire at
the end of the next session of the Senate.
Section 29, article VI of the constitution, provides that va

cancies occurring in any of the offices provided for in this arti
cle, shall be filled by appointment, as follows: Of judges of
the Supreme and district courts, by the governor; of district
attorneys, by the judge of the court of the district for which
such attorney was elected; and of all other judicial officers by
the board of county commissioners of the county wherein the
vacancy occurs.
Two questions arise: first, is the office of criminal judge

provided for in the preceding sections of article VI? Second,
was there a vacancy in the office at the date of the respective
appointments by the governor and county commissioners?
Both points are contested.
By preceding sections of article VI, Supreme, district and
county courts are created and established. They became exist
ing courts upon the adoption of the constitution, with defined

jurisdiction and power. Section 24 of the article declares
that The General Assembly shall have power to create and
establish a criminal court, etc. Because the power to create
and establish a criminal court is vested in the General Assem
bly instead of being created and established by the article, as

are the other courts, it is contended that it is not provided
for.
463
The words of the constitution must be taken in their ordi

nary and general acceptation, and it would be diicult to say
that this section, in every plain and natural use of the phrase,
did not provide for a criminal court.
We are asked to say that provided for mean_s created or
established, and that it includes only the courts created and es
tablished by the article. This would be substitution, not in
terpretation.
Upon examination, however, we nd that the section inter
prets itself in this respect.
The rst paragraph of the section declares in the same lan
guage that all oicers provided for in this article, excepting
judges of the Supreme Court, shall respectively reside in the

district, county, precinct, city or town for which they may be
elected or appointed. It follows that the framers of this ar
ticle regarded city and town ofcers as provided for by this ar

ticle, otherwise they would not have declared where they
should reside.
But an examination discloses that they are provided for in

the same manner as the criminal courts, by a declaration that
The General Assembly shall have power to provide, etc. Sec.
26, Article VI.
The section thus incidentally clearly declares the sense in
which its framers used the disputed words. We must accord
ingly hold that the oice of criminal judge comes within the
provisions of the section.
Turning to the second point, it will be found that the legal
force of the term vacancy has been the subject of adjudica

tions.
Upon the point, whether there can be a vacancy before
there has been an incumbent, the general doctrine appears to

be that the term may apply to an existing oice without an
incumbent, although it l1as never before been lled.
In the
case of Stocking v. The State, 7 Ind. 326, the courts say:
The vacancy followed as a natural consequence of their (the

General Assembly) doing what they had a right to do-to create
a new circuit. There is no technical nor peculiar meaning to
4434
Suramru COURT or COLORADO.

the word vacant as used in the constitution. It means empty,

unoccupied, as applied to an oice without an incumbent.
There is no basis for the distinction urged, that it applies only
to ofces vacated by death, resignation, or otherwise.
An ex
isting oice without an incumbent is vacant, whether it be a

new or an old one. A new house is as vacant as one tenanted
for years which was abandoned yesterday. \Ve must take tho
words in their plain, usual sense.
In Walsh v. Commonwealth, 89 1enn. St. 419, the court
say :
The result is that the word vacancy aptly and tI_v
describes the condition of an oice, where it is rst createl
and has been lled by no incumbent. The need to strain and

torture terms would lie in the opposite direction.
To the same effect are Clark No.-, 5 Nev. 111; State em
rel v. County Court, 50 M0. 317; State v. Ba!'cl'o7, 56 Mo. 7 ;
Dillon Corp. 161; 33 Am. Rep. 777.
There is some conict
of authority, but this appears to be the general and better doc

trine.
A. distinction however must be taken between the power to
ll an oice originally, and the power to fill a vacancy. The
People ea: rel v. Lcmgdon, 8 Gal. 3.
\Vhen a. new ofiice is
created, a vacancy does not necessarily occur.

It was entirely competent for the General Assembly to cre
ate and establish a criminal court, and provide that the judge
thereof should be appointed by the governor immediately or
within a xed time. Against this there is no constitutional
inhibition. In such case, until the expiration of the time
within which the executive was to exercise the appointing
power, there would be no vacancy. Upon the expiration of
the time xed without action, a. vacancy would immediately
occur by reason of the failure to act. Under the act in ques
tion, the appointment was to be made immediately after the
act took effect, and with the advice and consent of the Senate.
Immediately, would mean within a reasonable time, having

reference to the act to be done. The advice and consent of
the Senate being necessary, the hour of the adjournment of
46-3
The People, etc., v. ltucker.
that body would mark the extreme limit of time within which
the appointment was to be made. II-ad the act been signed
prior to the adjournment, and no appointment made, immedi
ately upon adjournment there would have been a vacancy, by
reason of the failure of the appointing power to exercise it.
In this case, the bill not having been signed until after the
adjournment, the governor was unable to act under the pro
vision for lling the ofce, with the advice and consent of the
Senate. Upon approval the act took elfect immediately; the
time within which the executive was required to appoint had
expired, and inability to_act was followed by a vacancy, the
same as in case of a failure to act.
There being a vacancy, and the oice being judicial, all the
conditions concurred that were necessary to make the 29th sec
tion of Article VI of the constitution, applicable, and it pro
vided that the vacancy should be lled by the county commis
sioners of the county where the vacancy occurred. In so far
as the act of assembly provides that vacancies in the oice of
judge of the criminal court of the county of Lake are to be
lled by the governor, it is in conict with the provisions of
the constitution, and the constitution must be enforced as the
paramount law.
While this is true, the entire act does not necessarily fail.
Where a part of a statute is unconstitutional, that fact does
not authorize the courts to declare the remainder void also,
unless all the provisions are connected in subject matter,

depending on each other, operating together for the same pur
pose, or otherwise so connected together in meaning, that it
cannot be presumed the legislature would have passed the one
without the other. The constitutional and unconstitutional
provisions may even be contained in the same section, and yet
beperfectly distinct and separate, so that the rst may stand

though the last fall. The point is not, whether they are con
tained in the same section, for the distribution into sections is
purely articial, but whether they are essentially and insepar
ably connected in substance. If when the unconstitutional
30
466

Fassett et al. v. Mulock.
portion is stricken out, that which remains is complete in

itself, and capable of being enforced in accordance with the
apparent legislative intent, wholly independent of that which
is rejected, it will be sustained. Cooley's Con. Lim. 178.
The General Assembly had full power to create and estab
lish the criminal court; to provide that the judge thereof
should be appointed by the governor, with the advice and con
sent of the Senate; to fix his term at two years; and to pro
vide that the term of the incumbent appointed to fill a vacancy
should expire at the end of the next session of the Senate.
These can all be treated as separate and independent pro
visions, and remain unaffected by this decision.
That portion of the act deemed unconstitutional is fully

supplied by the constitution, and with this exception, the act
can be enforced in accordance with the legislative intent.
The demurrer is sustained, and judgment entered for the
respondent.
Demurrer sustained.
FASSETT ET AL. V. MULOCK.

1. A mortgage is but an incident of the debt it secures, and an assign
ment of the debt carries the mortgage with it.
2. After having assigned the debt secured by the mortgage, the power of
the mortgagee ceases, and a release made by him is a nullitybeing in fraud
of the rights of his assigneeand such attempted release will be canceled,

and the mortgage lien enforced by the chancellor.
3. Where an estate is subject to a mortgage, and is sold by the mortgagor

in parcels at different times, the mortgage shall be satisfiedfirst, out of that
portion of the estate still in the hands of the mortgagor, and then out of the
parcels aliened, in the inverse order of their alienationand this rule applies
equally where the mortgagor has given mortgages of different dates on the
estate.
4. The purchaser of mortgaged premises has constructive notice of the

incumbrance, and takes it subject the eto, and that one stands in the relation
467
of mortgagee and owner of the first mortgage, as well as purchaser, can

make no difference in the application of the rule.
A mortgagee is at liberty
to deal with the mortgaged property, and purchase any portion of it, but,
if he do so, there is no reason for exempting him from the equities which
attach in the case of any other purchaser.
5. As between grantee and mortgagor, the residue remaining in the

hands of the mortgagor shall be applied to the payment of the mortgage
debt; as between the grantee and mortgagee, the latter being a creditor
with two funds, is required to proceed, primarily, against the fund upon
which the grantee has no claim.
6. The rule that when the equitable and legal estates unite in the same
person, the equitable is merged in the legal estate, is not inflexible. Courts
of equity are accustomed to treat the estates as merged or separate, as sub
stantial justice may require.
7. Objection to pleading not made in the court below will not be noticed
on appeal.
Appeal from District Court of Fremont County.

Messrs. WELLs, SMITH and MACON, for appellant.
Mr. W.M. M. Lock, and Messrs. RICHMOND & STANTON, for
appellee.
ELBERT, C. J. June 15, 1871, William H. McClure execu

ted and delivered to the appellant, Elisha Fassett, his prom
issory note for the sum of $2,000, and secured the same by a
mortgage of even date on lots thirteen, fourteen, fifteen and
sixteen, in block nine, in Caon City. April 27, 1875, Fassett
assigned this note to one Reynolds. July 14, 1875, Fassett
entered of record satisfaction of the mortgage. August 4,
1875, Reynolds in turn transferred the note to Mulock, the
appellee, but without indorsement. April 25, 1873, McClure
executed a second mortgage to Fassett on lot thirteen, to se

cure the payment of $2,100, and April 24, 1875, a third mort
gage on the same lot, to secure the payment of $1,662.50. Oc
tober 31, 1876, McCMure, at the instance of Fassett, and in sat
isfaction of the two last named mortgage debts, conveyed by

deed lot thirteen to Mrs. Phelps, Fassett's daughter. June 13,
468

1876, McClure gave another mortgage on lots fifteen and six

teen, to his brother, James McClure, to secure the payment of
$2,500.
December 22, 1875, McClure executed a
mortgage
to
Mulock, the appellee, on lot fourteen, to secure the payment
of $3,000. February 24, 1877, McClure conveyed by deed lot

fourteen to Mulock, in satisfaction of this last mortgage. All
of these several mortgages and deeds were duly recorded at or
about the time of their execution. May 29, 1877, Mulock filed
his bill against Fassett, Mrs. Phelps, William and James Mc
Clure, praying, inter alia, the cancellation of the release made
by Fassett of the first mortgage, and its foreclosure.
By stipulation of the attorneys of the complainant and
James McClure, the suit was dismissed as to the latter.
Upon final hearing the court decreed: That the deed of

conveyance bearing date October 31, 1876, made and execu
ted by Wm. H. McClure and Elizabeth McClure to Rozilla

Phelps, for lot thirteen, in block nine, in the town of Caon
City, etc., be, and the same is hereby set aside, vacated and
declared null and void, and of no effect whatsoever against the
plaintiff; that the entry of the release made by defendant
aforesaid, on the margin of book A, folio 260, of the records of
Fremont county, releasing the premises described in the mort
gage therein recorded and described in the said bill of com
plaint, be, and hereby is canceled and declared null and void,
so far as the same applies to or affects lot thirteen, in block
nine, and as against the rights of plaintiff under said mortgage

deed; that this cause be referred to John Wilson, to compute
the amount due from Wm. H. McClure to the plaintiff upon
the note and mortgage, and report the same to the court for
further order.
Upon the incoming of the master's report, showing $3,631.95

due on the note and mortgage, the court decreed: That
Wm. H. McClure, within sixty days from the date aforesaid,
November 9, 1878, pay to the plaintiff the said sum of money,
with interest at ten per cent. per annum, until paid, and costs,
and in default, all the premises mentioned in the bill, to wit:
469
lot thirteen, in block nine, in Caon City, or so much thereof

as may be necessary, be sold for cash in hand, at, etc.; that
the sheriff make said sale upon public notice first given, etc.
From this decree Fassett and Mrs. Phelps appeal.
It is a familiar principle that a mortgage is but an incident
of the debt it secures, and an assignment of the debt carries
the mortgage with it. 1 Hilliard on Mort, 238 et seq.
The indorsement on the note by Fassett to Reynolds is in
terms an assignment, and there is nothing in the evidence
that would warrant us in saying, as claimed by the appel
lants, that the parties intended a payment instead. It car
ried with it the mortgage by which it was secured, as did also
Reynolds transfer to Mulock, notwithstanding the note was
not indorsed by Reynolds.
Respecting the transfer by Reynolds to Mulock, there is
little, if anything, to justify the strictures of counsel in any
fair treatment of the evidence. It appears to have been the
ordinary case of a person with money to loan investing in a first
mortgage security.
After assigning the note, Fassett's power over the mortgage
ceased, and his release of record was a nullity. 1 Hilliard on
Mort. 241, 250, 251; Ec. of Swartz v. Lerst, 13 O. St. 420;
Cutter v. Havan, 8 Pick. 490; Phelan v. Olney, 6 Cal. 478.
It was in effect a fraud, and the fact that he held two prior
-
mortgages on a part of the property released, together with the

fact that the release was not made until several months after
the assignment, would warrant us in treating it as a fraud in

fact. The evidence called for and justified the decree of can
cellation.
The cancellation, however, should have been entire and un
qualified, as prayed for in the bill, and not limited to lot thir
teen.
He who seeks equity, must do equity, and it is manifestly
inequitable to allow the complainant to repudiate the fraud in

part, and adopt it in part, as it may chance to work an injury
or secure a benefit.
The restored mortgage which the plaintiff sought to fore
470
SUPREME CouRT of ColoFADo.

Fassett et al. W. Mulock.
close covered lots thirteen, fourteen, fifteen and sixteen, and
was foreclosed only as to thirteen.

Against this feature of the decree counsel for the appellants
make two points: 1. That lots fourteen, fifteen and sixteen,
should have been first sold to satisfy the mortgage. 2. That
if James McClure sustains the character of a bona fide pur
chaser of lots fifteen and sixteen, then lot fourteen should have
been first sold to satisfy the mortgage.

These objections are founded on the rule that where an es
tate is subject to a mortgage, and is sold by the mortgagor in
parcels at different times, the mortgage shall be satisfied first
out of that portion of the estate still in the hands of the mort
gagor, and then out of the parcels aliened, in the inverse
order of alienation.
Touching this rule, there is some conflict of authority.
Kentucky and Iowa hold to the principle of equality of con

tribution among all the purchasers of the mortgaged premises,
based on the value of the several parcels.
Dickey v. Thomp.
son, 8 B. Monroe, 312; Bates v. Ruddick, 2 Iowa, 430 (Cole's

edition); Griffith v. Lovell, 26 Iowa, 226; Barney v. Myers
et al. 28 Iowa, 472.
In Ohio and Massachusetts there is a conflict of authority.

Com. Bank, etc., v. W. B. Bank, 11 Ohio, 444; Green v.
I'amage, 18 Ohio, 428; Allen v. Clarke, 17 Pick. 47; Chase
v. Woodbury, 6 Cush. 143; Parkman v. Welch, 19 Pick. 231.
New York, Vermont, New Jersey, Virginia, New Hamp

shire, Maine and Illinois, hold to the rule that mortgaged
premises are to be subjected to the liens in the inverse order
of their alienation. James v. Hubb tril, 1 Paige, 234; Jenkins
v. Freyer, 4 Paige, 53; Guion v. Knapp, 6 Paige, 35; Patty

v. Pease, 8 Paige, 277; Skeil v. Sparkes, 8 Paige, 182; Ly
man v. Lyman, 32 St. 79; Shanon v. Marsells, 1 Saxton,
413; Wickoff v. Davis, 3 Green Ch. 224; Henkle v. Alslatt,
4 Gratt. 284; Jones v. Myrack, 8 Gratt. 179; Brown v.
Simms, 44 N. H. 475; Holden v. Pike, 24 Maine, 427;

Shepherd v. Adams, 32 Maine, 63; Iglehart v. Crain, 42 Ill.
267.
471
The reason of the rule is clearly and forcibly stated by Mr.

Justice Lawrence, in Iglehart et al. v. Crain d8 Wesson,
supra:
If a mortgagor conveys a portion of the mortgaged prem

ises, retaining a portion himself, it is familiar law, and admitted
by all the cases, that, as between the mortgagor and his gran
that portion retained by the mortgagor should be first applied
to the payment of the mortgage. An equitable lien attaches
for this purpose in favor of the grantee, as against the parcel
held by the mortgagor. The equity of this rule is apparent,
and the plain ground that a man's own property should be
first applied to the payment of his own debts, and when a
court of chancery requires a mortgagor first to exhaust that
part of the mortgaged property still held by the mortgagor, it
is only another application of the principle so long and so
firmly settled by courts of equitythat where there are two
creditors standing in equal equity, one of whom has security
upon two funds, and the other upon only one of the two, the
former is required to proceed primarily against the fund upon
which the latter has no claim. The justice of first subjecting
to the payment of the mortgage so much of the mortgaged
property as may still remain in the hands of the mortgagor,

.
If, then, this species of equitable lien has attached in favor
of a purchaser of a part of the mortgaged premises against
cannot be denied.
the residue in the hands of the mortgagor, how is this residue

to be considered as discharged from the liens merely by a sale
and conveyance of it to a third person taking with notice of

all the facts? The purchaser with notice simply steps into the
shoes of the mortgagor. He can claim no equity which would
displace that of the prior grantee of the other portion of the
mortgaged premises, because having voluntarily and knowingly
become the purchaser, he cannot by such act, and at his own

mere volition, displace or impair the equity of another.
It will be seen from the foregoing as well as from a perusal
of the authorities, that the doctrine of subjecting mortgaged
/
*
472

property to the payment of the mortgage debt in the inverse

order of alienation, is a rule of equity administration, logic
ally resulting from the application of two familiar principles
of equity jurisprudence, namely:
1. As between the grantee and the mortgagee, the residue
remaining in the hands of the mortgagor shall be first applied
to the payment of the mortgage debt.
2. As between the grantee and mortgagee, the latter being
a creditor with two funds, is required to proceed primarily
against the fund upon which the grantee has no claim.
Supported, as the doctrine is, both by reason and authority,
we accept it as the law.
The equities of the appellant as against James McClure,

mortgagee of lots fifteen and sixteen, will be first considered,
and in the absence of any objection by counsel to the plead
ings, the questions made will be treated as regularly before us.
It will be observed, that at the date of the mortgage to
James McClure, the mortgage of the complainant stood released
of record by Fassett, the mortgagee and assignor of the mort
gage. James McClure had no constructive notice of the exist
ence of the mortgage, nor does he appear to have had actual
notice that the release by Fassett was fraudulent. The evidence
shows him to be a subsequent incumbrancer in good faith

without notice, and for a valuable consideration.
As between the appellant, Fassett, and James McClure, there

fore, we need not go into any question of priority. Fassett
having fraudulently released the first mortgage, and McClure
having taken his lien without notice of the fraud, upon restor
ation of the mortgage, Fassett is in no position to urge that
the lots so held by McClure shall be primarily subjected to
the payment of the mortgage, of which he had no notice, by
reason of Fassett's fraud, and of which, had he had notice, it
is not to be presumed he would have taken his lien.
To say otherwise, would be allowing Fassett to reap an ad
vantage from his fraud.
Should it be admitted, that as between the complainant Mu
473
lock and James McClure, lots fifteen and sixteen stood charged
with the mortgage debt, notwithstanding McClure was a bona
fide incumbrancer, McClure would have an undoubted equity,
in view of the fraud, to have lot thirteen, held by Fassett, de
creed primarily liable for the mortgage debt.
As between Fassett and his daughter, Mrs. Phelps, there
was no valuable consideration; the conveyance to her was a
consideration of natural love and affection.
She therefore
took the property charged with these equities against Fassett.

In this view, it cannot be said that the appellants were
prejudiced by the dismissal of the bill as to the defendant,
James McClure.
We come now to consider the second objection made to the

decree.
By the dismissal of the bill as against McClure, lots thirteen

and fourteen alone remained to respond to the mortgage debt.
Both the complainant and Fassett had full knowledge of the
release and its character, and their respective equities were to
be determined as though it had never been made, neither allow
ing Fassett to reap any benefit nor the complainant to suffer
prejudice therefrom. Fassett's claim of negligence on the part
of complainant in not sooner taking steps to set aside the
fraudulent release, is unsupported by any equitable considera
tion. The fraud was his own, and his claim of protection on
the ground that there had been want of diligence in setting

aside and annulling his fraudulent act, is, at best, but effrontery.
The dates of Fassett's mortgages on lot thirteen were April
25, 1873, and April 24, 1874. The date of Mulock's mortgage
on lot fourteen was December 22, 1875.
The date of the
mortgagor's conveyance of lot thirteen to Mrs. Phelps was Oc

tober 31, 1876. The date of the mortgagor's conveyance to
Mulock of lot fourteen was February 24, 1877. In each case
the mortgage debt appears to have been the consideration, al
though Fassett, intending a gift to his daughter, Mrs. Phelps,

caused the conveyance to be made direct to her, he paying the
consideration by surrender of his two mortgages.
474
SUPREME CourT OF ColoRADo.

The rule that incumbered lands are to be charged in the in

verse order of alienation of the several parcels, applies equally
where the mortgagor has given thereon mortgages at different
dates. Schrever v. Teller, 9 Paige, 173."
Whether considered as subsequent incumbrancers or as sub
sequent purchasers, Fassett was prior in point of time. When
he purchased lot thirteen, he took it subject to the mortgage,
which he had assigned to Mulock, and which is sought to be
foreclosed; but under the rule which we have discussed he had
an equity which attached to lot fourteen, and made it, as be

tween him and the mortgagor, primarily liable for the mort
gage debt.
When Mulock in turn became the purchaser of lot fourteen,
he had constructive notice of this equity, and took it subject
thereto. That he stands in the relation of mortgagee and
owner of the first mortgage, as well as purchaser, can make
no difference in the application of the rule. A mortgagee is
at liberty to deal with the mortgaged property, and purchase
any portion of it, but if he do so, there is no reason for exempt
ing him from the equities which attach in the case of any
other purchaser.
As a mortgagee having a first mortgage, his rights are pre
served intact, and are to be enforced against all the property.
As a purchaser, he has taken property subject to an equity
with full notice, and has voluntarily assumed the risks of such
a purchase; if he loses, it is his purchase money, and not his
mortgage debt.
The rule that when the equitable and legal estates unite in
the same person, the equitable is merged in the legal estate, is
not inflexible. Courts of equity are accustomed to treat the
estates as merged or separate, as substantial justice may re
quire. Skeil v. Spraker, 8 Paige, 185.
Whether the effect of the conveyance of lot fourteen by Mc
Clure to Mulock was to merge the mortgage as to that lot,
need not be determined, as, in either view, Fassett's equities
to have the mortgage debt abated as a lien on lot thirteen to
the extent of the value of lot fourteen, remain unaffected.
uh ~1 O1

Fassett et al. v. Muloek
- Nor does the fact that Mrs. Phelps sustains the character of
donee, preclude her from asserting this equity. Fassett paid
a valuable consideration to the mortgagor, and the case stands
the same asif McClure had conveyed to Fassett, and he in
turn to Mrs. Phelps. Not having paid any valuable consider
ation, she must respond, as we have seen, to the equities against
her donor; but her donor being a purchaser for a valuable
consideration, she is entitled to assert his equities as her own.
The objection that the appellants could avail themselves of
their equities only by cross-bill, is not well taken.
The fact
that Mulock was a subsequent purchaser to Fassett of a por

tion of the incumbered property, was matter of defense that
went in bar to part of the relief prayed against the appellants.
As the proceeding was under the old chancery practice, it
should perhaps have been set up by way of plea; but as no
objection was made to the answer in the court below, it will
not be noticed here. Mulock having appropriated lot fourteen
by his purchase, should have been decreed to account for the
value. In taking the account the master should have been
directed to ascertain the then value of the lot, and as between
the complainant and the defendants, Fassett and Mrs. Phelps,
to allow it in abatement of the mortgage debt.
To satisfy
any unpaid balance, foreclosure and sale of lot thirteen should

have been decreed.
We say, the then value, and not the value at the date of the
purchase, for the reason that the sum for which lot fourteen
would have sold at public vendue under the foreclosure pro
ceedings, would constitute the credit to which appellant would
have been entitled had there been no purchase by the appellee.
Of course, any appreciation of value arising from improve
ments made by the appellee after the date of his purchase, is
to be excluded from the account. To this extent the decree of
the court below is sustained and the case remanded, with direc
tions for_ an account and decree in accordance with the views

herein expressed.
O
476

Whitsett v. Clayton et al.
WHITSETT v. CLAYTON ET AL.

1. Where an agreement is entered into between a creditor and his debtor,
the terms of which are that the debtor is to execute a. new promise with a
surety, in a smaller sum, payable at a. future day, the creditor agreeing to
accept the new promise in satisfaction of the old one, the surety to be sut
cient, and the new promise being executed and tendered and the tender kept
good; Held, that such performance and tender constitute a. bar to the action
on the original demand.
2. Where adcfendant puts in no general denial or other defense based
upon the facts as they existed at the commencement of the suit, but sets up
as a defense matters subsequently occurring, he is not required to plead by
leave ot' the court by supplemental answer, under the Code. Sec. 74, and
amendments of 1879, p. 216, Sec. 3, are inapplicable to such case.
Appeal from District Court qf Arapa/we County.

Tun: case is stated in the opinion.
Messrs. WELLS, Smrn & Mason, for appellant.
Mr. WV. B. MILLS, for appellees.
Baox, J. The record in this case presents a question of ac

cord and satisfaction, which arises upon a demurrer to the
amended answer.
The action is upon a promissory note executed by the ap
pellant to the appcllee, for the sum of $2,378.42, bearing date
July 24, 1874, payable one month after date. with interest at
1-12 per cent. per month from date until paid. Suit was in
stituted thereon October 17, 1879.
The amended answer sets up as a defense to the whole cause
of action, except the sum of one dollar, an agreement entered
into between the plaintiffs and defendant on or about the 26th
of October, 1879, that defendant was to procure one Emma C.
Wliitsett to execute with him a new note in the sum of $2,500,
payable to plainti"s one year after date, which note plaintiffs

were to accept in full satisfaction and discharge of the note
sued on, provided it should be ascertained upon inyestigation
477
by plaintiff's counsel, that the said Emma C. Whitsett was

solvent and responsible for the amount of the new note. The
plea alleges that it was ascertained upon investigation by
plaintiff's counsel, that the said Emma C. Whitsett was sol
vent and responsible for said amount, and that she was in fact
solvent and responsible for such amount; that the note was
executed in accordance with the terms of the agreement, and
offered to be delivered to plaintiffs, and the defendant brings
said note into court, and offers to deliver the same to the plain
tiffs, as the court shall direct. ,
A demurrer was sustained to this answer, on the ground that

it presented no defense to the action. No objection is raised
to the form of the plea, or the sufficiency of the tender, but the
ground of the objection is, that the alleged accord, although
performed on the part of the defendant, yet the performance
not having been accepted by the plaintiffs, remains executory,
and was not a satisfaction of the original claim.
The question to be considered is in case of a demand due,
where an agreement is entered into between the creditor and
his debtor, the terms of which are, that the debtor is to exe
cute a new promise with a surety, at a future day, in a smaller

sum payable in one year, the creditor agreeing to accept the
new promise in satisfaction of the old one, provided he ascer.
tains the surety to be sufficient (which upon inquiry he ascer
tains to be the fact), and the new promise is accordingly exe
cuted and tendered in pursuance of the agreement, the tender
being kept good, whether such performance and tender consti
tute a bar to the action on the original demand.
That such an agreement contains all the elements of a valid
and binding contract, cannot be seriously questioned. It is an
agreement with mutual promises, rests upon a sufficient con
sideration, and is not within the Statute of Frauds.
It is
beneficial to both contracting parties. The debtor obtains a

reduction of his debt, and an extension of time for payment.
The creditor obtains surety for the amount of the demand
agreed upon. 1 Smith's Leading Cases, *444; Billings v.
478
SUPREME Counr or CoLon.u)o.

Vamlerleclc, 23 Barb. 546; Kellogg v. Richards, 14 W!1d.
11s.
It would seem, upon the principle of the obligation of con

tracts, as well as upon the principles of equity and good con
science, and in order to avoid circuity of action, that the per
formance of the accord by the debtor, ought to operate as a
satisfaction.
We have been cited to several cases, however, wherein the
point arose, which hold that such performance is no bar to a
suit upon the original claim, and to several other cases an

nouncing the same doctrine, but turning upon some other
point, and therefore not necessarily involving an investigation
of this precise question.
These cases hold that it is not enough that the contract
be obligatory upon both parties, and that the debtor has exe
cuted it upon his part, nothing remaining but an acceptance
on part of the creditor of the matter or thing which he agreed
to receive in satisfaction; that the creditor may refuse to ac
cept the thing agreed upon, and proceed upon the original in
debtedness, leaving the debtor to his remedy by action for
damages against the other party for the violation of his agree
ment.
This line of authorities carries the doctrine to a still greater

extent, holding, that if by the terms of tho new agreement the
payment thereby stipulated is to be made in installments at
stated times, and when completed shall constitute a satisfac
tion, the creditor may receive all installments without objec
tion or notice, until the last one is tendered, and may refuse
to receive the last installment in satisfaction, and proceed
upon the original account; that in such case he is only re

quired to give credit for the payments made, as if made upon
the original indebtedness.
The authorities in point which sustain this doctrine, are:
Russell v. Lytle, 6 Wend. 390; Hawley v. Foote, 19 Wend.

516; Kremer v. Heirn, 75 N. Y. 574; T-ilton v. Alcott, 16
Barb. 598.
479
The following cases cite approvingly the doctrine that per

formance of the accord on part of the debtor constitutes no de
fense to an action upon the old debt, but the decisions do not
rest upon this ground.
Brooklyn Bank v. De Gramo, 23 Wend. 342, holds that no
definite agreement between the parties was proved; that the
-
tender was defective, and if sufficient, it could not avail the
defendant because he did not keep it good, but destroyed the

securities tendered.
In Frost v. Johnson, 8 Ohio St. 393, one of the conditions
of the accord was the payment of a sum of money by a cer

tain date, but the plea neither avers payment or tender of the
money.
In Young v. Jones, 64 Me. 279, the agreement was to re

ceive from the debtor a smaller amount than that due upon
his draft, and the draft was to be then transferred to a third
person. There was no consideration to support the accord;

the sum to be paid was not to be a payment of the draft, for
that was to be afterwards assigned, and the court say the ten
der, if made, cannot avail, as it was not brought into court.
White v. Gray, 68 Me. 579, turned upon a failure on part
of the debtor to perform the accord. Neither the notes nor
the deed for the land which were to be received in satisfaction
were ever made or tendered.
The question in the case, and the point considered in Over

ton v. Conner, 50 Texas, 113, was whether the court below
erred in refusing to submit to the jury the inquiry, what be

came of the property taken in satisfaction after it was received,
and whether or not the plaintiff received the benefit of the
Salile.
Smith v. Keels, 15 Rich. S. C. 318, turned upon the suffi.

ciency of the tender. The plaintiff had agreed to take in pay
ment of the note, eight per cent. confederate bonds. The bonds
tendered amounted to more than the principal and interest
due on the note, and the defendant refused to deliver them
unless the plaintiff would pay the difference in money, which
480

he declined to do. The tender was adjudged to have been

defective.
Pettis v. Ray, 12 R. I. 344, was held to show merely the

readiness on the part of a stranger to the accord to perform it,
if the creditor would put it in his power by conveying the
mortgaged estate to him. The court said no case went to this
extent. It was likewise held that, as a distinct contract avail.

able under the plea of equitable defense, the accord was within
the Statute of Frauds.
The opinion in Hearn v. Kiehl, 38 Pa. St. 147, shows that

in the view of the court there was neither performance on part
of the debtor, nor any act done by him, which amounted to a
tender of performance, the alleged tender not being made to

the creditor, nor to one authorized to accept it.
In Keen v. Vaughn's Ec'rs, 48 Pa. St. 477, there was no
consideration to support the accord. It was simply an agree
ment to accept $300, in satisfaction of a judgment of $1,356.60.
If Blackburn v. Ormsby, 41 Pa. St. 97, is an authority in
point, it favors the opposite doctrine. The accord was that
the debtor was to secure his notes by a mortgage on real estate,
and to execute a note for extra interest. Thereupon the debtor
was to extend the time of payment of all notes two years.
The court held the agreement to be good and to be supported
by a sufficient consideration, but that the plea did not specific
ally aver a tender of the note and mortgage. Nothing is
wanting, observed Judge Woodward, to make it conclude
the plaintiff, except the tender of a sufficient note and mort
gage. * * * If he tendered the note and mortgage, why
did he not say so? The court remarked, however, that the de
fense would be available, not by way of accord and satisfaction,
but as showing that at the institution of the suit the plaintiff
had no legal right of action.
The case of Coit v. Houston, 3 John's. Cases, 243, is fre
quently cited upon both sides of the question. It is recon

ciled with other New York cases, upon the view that the ques
tion involved was one of evidence and not of pleading, and
481
that there was evidence from which the jury might infer a de
livery and acceptance of the coal which was to constitute the
satisfaction. That the judges considered the question of tender.

however, a few quotations from the opinions will show, and
will also show what were their views upon the question.
Tnourson J., said: Although I do not think it neces
sary, for the purpose of determining the present question, to
say that in all cases a tender and refusal shall be equivalent to

an actual acceptance, yet I think it a rule founded in good
sense, and one that is not contradicted by the general tenor
of the authorities.
l.1vmosToN,J., said:
Such a tender of performance of a
valid agreement ought to be equivalent to performance in

order to avoid circuity of action.
To enforce payment of the
note, in spite of the agreement and tender, would be unreason

able, and the law does not permit it.
RADCLIFFE, J., said: I also agree that in relation to the
parties, and for the purpose of effectuating this contract, a
tender and refusal would be equivalent to an actual perform
ance, etc.
KENT, J., said:
I think this case maybe decided upon this
single point, whether there was evidence of a satisfaction re

ceived, or performance tendered suicient to warrant a verdict.
Similar views are expressed by Parsons and Story, in their
works upon Contracts. Mr. Parsons, in treating of accord and
satisfaction, says: The party holding the claim may agree
to take anew promise of the other in satisfaction of it; or he
may agree to receive a new undertaking when the same shall
be executed, as a satisfaction. In either case he will be held
to his bargain, and only to that.
2 Pars. Cont. 681.
In speaking of promises performable at a future day, he

makes a distinction between those which are supported by a
new consideration, and those which are not. The former he
31
s
482

denominates as valid and binding, and says their effect is to

suspend the original right of action until the day comes. If
the promise is then duly performed, this right of action is de
stroyed, ortherwise, it revives (supm, 683). If this is correct
doctrine, it necessarily follows that the debtor has the right to
perform his promise when the day comes, and to avail himself
of such performance, since the law never requires a useless
thing to be done.
Unless the debtor has this right, why stay
the action until the day arrives? Mr. Story says: \Vhether
an accord with an unaccepted tender of satisfaction be a sutii
cient defense does not seem to be settled. If the accord be to
acceptalcsser sum than the debt in satisfaction of it, there
must be an actual acceptance in order to constituteadefense to
the debt, and a mere tender is insufficient. Thus, an agree

ment by creditors to accept ve shillings sixpence in the pound,
in full satisfaction of their claims, was held to create no bar
to an action for the full debt, there being no consideration to
support the agreement. But where there is a sufiicient consid
eration to support the agreement, it seems that a tender, though
unaccepted, would be a bar to an action.
So also, where a dif
ferent mode of payment from that reserved by the original

claim is substituted for it by agreement, a tender according to
such agreement will be sufficient if it appear to have been a
complete satisfaction.
Story on Conts.-Sec. 9S2b.
Mr. Addison says: If the _act covenanted or agreed to be

done by one party cannot be completed without the concur
rence of the party for whom it is to be done, the former must
do all that he can do without such concurrence to complete the
act, and if he docs this he does what is equivalent in law to
actual performance. And again: It is a principle of law
that he who prevents a thing from being done shall not avail
himself of the non-performance which he has himself occa
sioned.
Addison on Conts. Secs. 325, 326.
It has been held that an agreement upon the one part to pay
on a future day certain, and upon the other part to accept in
full satisfaction, if payment be made on such day, a sum of
483
money less than the demand due, is a valid agreement if sup

ported by a new consideration as security for the payment;
that in such case the contract is binding according to its im
port, and when the day of payment arrives, if the payment is
prevented by the wrong of the creditor, a tender will be equiv

alent to performance. (Jenness v. Lane, 26 Me. 475.) No
difference in principle is perceived between such an agreement
and an agreement supported by a new consideration to dis
charge the original debt in any other manner at a future day.
The case of Ooit v. I10 ustin, supra, supports the view that the
same rule of decision would obtain if the agreement was to
discharge the claim by a delivery of property at a future day,
and it would seem that an agreement to execute and deliver a
new contract with a surety should be construed in the same
manner and governed by the same rule.
The language employed by Judge Redeld in Babcock v.

Ilawkins, 23 Vt. 561, seems peculiarly applicable to such
cases: The accord is suiciently executed when all is done
which the party agrees to accept in satisfaction of the pre
existing obligation. * * * * All that is required is that
the debtor should have executed the new contract to that point
where it was to operate as satisfaction of the pre-existing lia
bility in the present tense.
The rule that there must be an acceptance in such case, as
well as performance, appears to me to he inequitable. It is

said that the rule that payment of a less sum of money, though
agreed to be received in full satisfaction of a debt exceeding
that amount, shall not be so considered in contemplation of
law, is technical, and not very well supported by reason: Kel
logg v. Richards, 11- \Vend. 116; but in the cases above sup
posed, it would certainly be more purely technical and less
reasonable that the performance of the agreement must be ac
cepted to constitute a defense, for the creditor has by a valid

agreement bound himself in advance that he will accept the
performance. The rule of law in respect to other agreements
requires both contracting parties to abide by and perform their
484
SUPREME Courrr or Corosano.

contracts. Why should not the same principle control agree

ments of this character 3
I have searched the authorities diligently, but in vain, for a
satisfactory reason for the rule which permits a creditor to re
ject the accord after it has been performed by his debtor, and
to maintain his original action. The only reason advanced
appears to be that a contrary rule would overthrow all
the books. I think the old maxim applies Cessante ratinne
legis, cessat ipsa lew. If no better reason can be assigned for

a rule so technical and unreasonable, would it not be better
that the books be overthrown, and that there be established in
l4~o~J
r
the language of Judge Livingston, a rule founded in good

sense.
But, as already shown, such a rule as here contended
for, has often been recognized.
It is not a new doctriuerjbut
one only in respect to which authorities differ. It was applied

by Lord Ellenborongh in Bradley v. Gregory, 2 Camp 363, a
case very similar to the one now before us. A debtor com
promised with all of his creditors but the plaintiff, at 10s. in
the pound, part of that amount to be secured by the accept
ances of a third party, and the balance by his own notes, the
creditors agreeing to execute a composition deed containing
a clause of release. The plaintiff, being applied to, agreed
to accept the composition, and to execute the release; but the
bills and notes being tendered, he declined to accept them, and
to execute the deed. Thereupon he sued upon the original de

mand, and the agreement for composition was pleaded as a
defense. The learned judge held the agreement to operate as
a satisfaction, on the ground that it was supported by a good
consideration, and that the plainti' had undertaken to accept
the bills and notes in satisfaction of his demand.

In answer to the objection that the agreement was executory,
and therefore no bar, the judge said the agreement was exe
cuted; that everything on the defendants part had been per
formed, and so far as depended upon him, there had been satis
faction as well as accord. The decision of this case was not
based upon the exception referred to in some of the authorities;
DECEMBER
TERM,
1880.
485
Kromer v. Heim, 75 N.Y. 574, for example, as being allowed

in the case of composition deeds, as in the case of Good v.
Cheeseman, 2 B. & A. 335, and Bayley v. Homan, 3 Bing. (N.
C.) 915. The plaintiff had not signed the composition, and
refused to do so. He had done simply what the plaintiffs in
the case at bar are said to have done, viz.: he agreed to accept
the composition to discharge the original claim, and then re
fused to comply with his agreement. The defendant, on the
contrary, did just what the defendant Whitsett claims to have
donehe complied in all things with the terms of the accord

upon his part. This was what Judge Washington said the
defendant should have done in Latopee v. Pecholier, 2 Wash.

C. C. 180, and what Judge Redfield declared to be a sufficient
execution of the accord in Babcock v. Hawkins, 23 Vt. 561.
This rule is supported both by reason and authority, and is,

in my judgment, the better doctrine. It is sustained also by
the following additional authorities: Christie v. Craige, 20
Pa. St. 430; Bradshaw v. Davis, 12 Texas, 336; Hearn v.
Curran, 11 S. & M. 361; Jones v. Perkins, 29 Miss. 142.
The other rule considered with reference to its application to

the facts set up in the plea under consideration is inequitable,
tends to produce circuity of action, to impair the obligation of
contracts, and to enable parties to take advantage of their own
wrongful acts. For these reasons I deem it inapplicable to the
alleged facts of this case.
It is a common occurrence, owing to the hazards which at
tend business enterprises, and the constant fluctuations in the
values of property, for business men to become involved in debt
so as to be unable to meet their obligations at maturity. In
such cases a new agreement reducing the debt and extending

the time of payment, in consideration of security, is often a
benefit to both debtor and creditor. By this means the sacri
fice of the debtor's estate by expensive litigation and forced
sales is prevented, and he is afforded an opportunity to re
# trieve his fortunes.
The benefit of the security to the creditor is of an equivalent
486
SUPREME COURT OF Cononano.

for the discount given.
Such an agreement when fairly made,
is a legitimate transaction, and is said to be favored by the

courts. It is supported by a good consideration, and I am oi
opinion that when the debtor has fully performed the agree
ment for composition upon his part by preparing and executing
the new securities, and causing the same to be executed by the
person or persons agreed upon, a suicient tender of the same
to the creditor, if the tender be kept good, should operate as a

satisfaction of the original debt. If the alleged facts are un
true, or if Hie consideration for the accord has failed prior to
the tender, by reason of the insolvency of the proposed surety
or otherwise, such facts can be replied to the plea.
In respect to the question of practice raised by the demurrer,
that the facts set forth in the plea were only pleadable by way
of supplemental answer, by leave of the court, it is my opinion
that the rule suggested is inapplicable to this case.

The form of the plea is subject to criticism, but as no question
of this character is raised in respect to it, it is only necessary
to observe that a plea of tender ot' securities should leave no
doubt that the securities were present at the time of the offer
to deliver, .so that the party to whom they were oered not
only knew of their existence, but had an opportunity to inspect
them. There should be a specic averment that the securities
were tendered.
Blackburn v. 0r1ns7)_y, 41 Pa. St. 97.
The court erred in sustaining the demurrer to the amended

answer, and for this error the judgment must be reversed, and
the cause remanded.
Judgment reversed.
\
r.
487
The People, etc., v. Boughton.
THE PEOPLE Ex REL. RoBINSON v. BouGHTON.

1. This court may take jurisdiction in an agreed case.
2. The Constitution confers original jurisdiction on this court to issue
writs of quo warranto, and to hear and determine the same.
3. The repeal of the statute (R. S. Ch. LXXIII), and the enactment of .
the Code remedy did not take from this court its original jurisdiction in quo
warranto proceedings conferred by the Constitution.
4. Both the Constitution and the statute now authorize the county com
missioners to fill a vacancy in the office of county judge, without regard to
the duration of the unexpired term.
5. B was on the 2d day of October, 1877, elected county judge for the
term of three years.
At the general election, held November 2, 1880, D was
chosen as successor, the term of D to commence on the 2nd Tuesday in Janu

ary next thereafter. On the 26th of November, 1880, D having received his
certificate of election, filed his oath of office and official bond, which bond
was on the 8th December approved by the board of county commissioners.

On the 1st day of January, 1881, D died, not having had possession of the office.
Held, that B did not hold over, and that upon the expiration of his term,
his successor having been duly elected and qualified before his death, a va
cancy occurred in said office.
6. The eligibility of the appointee of the county commissioners, and the

regularity of the manner of his qualification, in the absence of facts tending
to show the contrary, will be presumed.
7. The parties having submitted themselves to the jurisdiction of this
court, it will not only determine their rights, but enforce its adjudication by
the entry of an appropriate judgment.
INFORMATION in the nature of a quo warranto.

Messrs. HAYNEs, DUNNING & HAYNES, for relator.
Mr. L. R. RHODEs, for respondent.
BECK, J. This is a proceeding instituted for the purpose of
determining who is entitled to exercise the duties of the office
of judge of the County Court of Larimer County, the relator,
Thomas M. Robinson, or the respondent, Jay H. Boughton.
The submission sets out, inter alia, the following facts, viz:
Boughton was re-elected judge of said court October 2, 1877,
488.
for the term of three years. He qualified and entered upon

the new term of office January 9, 1878. At the general elec
tion held November 2, 1880, one Leonidas E. Denslow was
elected as his successor, for the succeeding term of three years.

Denslow received his certificate of election, and on the 26th of
November, 1880, filed his oath of office and official bond in due
form of law. The bond was approved by the board of county

commissioners on the 8th day of December, 1880. Denslow
died on the 1st day of January, 1881, not having had possession
of the office.
On the 11th day of January, 1881, the board of county com

missioners appointed the relator judge of said county court, to
fill the vacancy supposed to have been occasioned by the death
of Denslow. The relator qualified on the same day, and on
the next day notified the respondent of his appointment and
qualification, and demanded possession of the office and its
effects. The demand was refused, and the respondent still
continues to exercise the duties of the office.
Notwithstanding the submission of the case upon an agreed

statement of facts, a question of jurisdiction is raised on part
of the respondent. The objections to the jurisdiction are, that
the jurisdiction conferred by the constitution upon this court,
is essentially appellate, whereas this is an original proceeding.
Also, that this court cannot take jurisdiction by an agreed
CalSe.
As to the last objection, it is only necessary to say that this

court has never held that the facts may not be agreed upon by
the parties in causes wherein it has assumed original jurisdic

tion.
Molandin v. Colo. C. R. R. Co. 173, was not a case
of this nature.
The position taken by counsel for the relator is, that the
proceeding is warranted by chapter XXVIII of the Code of

Civil Procedure, which provides for submitting a controversy
without action.
If the jurisdiction in this case depended upon the chapter of

the Civil Code referred to, it could not be sustained, as the
489
provisions of that chapter, in our opinion, apply to nisi prius

courts only. That such was the understanding of the legisla
ture is evident from the last section, which provides that judg
ments rendered in the proceeding authorized by the chapter,
shall be subject to appeal.
But while the submission is irregular, the subject-matter of
the controversy is within our jurisdiction. The constitution
confers original jurisdiction on this court to issue writs of quo
warranto, and to hear and determine the same. The power
-
so conferred has been construed to include an information in
the nature of a quo warranto. The People ex rel, etc. v.

Keeling, 4 Colo. 129.
The repeal of the quo warranto statute, R. S. Ch. LXXIII,
and the enactments of the Code remedy therefor, entitled Ac
tions for the usurpation of an office or franchise, Civil Code,
Ch. XXV, did not take away from this court its original juris
diction in quo warranto proceedings conferred by the consti
tution. High on Ex. Leg. Rem. Sec. 615, and cases cited.
Counsel misapprehend the point decided in A. T. & S. F.
R. R. Co. v. The People, at October special term, 1879. The
change made by the legislature in the form of the remedy and

in the practice, affected the district courts, not the Supreme
Court.
Having therefore original jurisdiction to entertain an action
of this character, and the parties to the controversy having

submitted themselves to the jurisdiction, we are disposed, in
view of the public interest involved, to treat the proceeding
as an information in the nature of a quo warranto, and to en
tertain it.
The title of the relator to the office of judge of the county

court depends upon the determination of the question, whether
on the day of his appointment there existed a vacancy in the
office.
The eleventh section of the election law, approved March 8,
1877, provides that the regular term of all State, district and
county officers shall commence on the second Tuesday of Jan
490
SUPREME CourT of ColoRADo.

uary next after their election, except as otherwise provided by

law. Gen. L. p. 362.
Denslow died ten days before the commencement of the
term for which he was elected, according to the provisions of
this section.
Section 50 of the act concerning counties, county officers,

etc., approved March 24, 1877, provides: If any vacancy in
the office of county judge should occur by death, resignation
or otherwise, the board of county commissioners shall appoint
some suitable person to fill such vacancy until a successor shall
be elected according to law; provided, that if the unexpired
term exceed one year, the vacancy shall be filled by election.
G. L. p. 232.
The proviso to the foregoing section was virtually repealed
in 1879, by the adoption of the substitute for Sec. 29, of arti
cle VI of the constitution, G. L. p. 132. Both the constitution
and the statute now authorize the county commissioners to fill
a vacancy in the office of county judge, without regard to the
duration of the unexpired term.
Sec. I of Art. XII of the constitution authorizes the incum
bent of this, and other civil offices, to exercise the duties of
such office until his successor is duly qualified.
The foregoing facts, and the constitutional and statutory
-
provisions referred to, bring this case fairly within the rule
laid down by the Supreme Court of Missouri, in State ex rel.
Attorney-general v. Seay, 64 Mo. 89.
In that case, as in this, the newly elected judge died before
the commencement of his term, having previously qualified.

The constitution specified the term of office, and provided that
officers elected May continue in office until their successors
shall be elected and qualified. It also provides, that If any

vacancy shall happen in the office of any circuit judge by death,
resignation, removal out of his circuit, or by any disqualifica
tion, the governor shall, upon being satisfied that a vacancy

exists, issue a writ of election to fill the vacancy. A writ was
issued, the election held, and the respondent in that case was
491
duly elected.
He qualified and entered upon the duties of his
office. Afterwards this proceeding by quo warranto was in

stituted to try his title.
The court upon a careful review of the authorities, held that
the death of the judge elect after having qualified, but before
the commencement of his term, had the effect of creating a va
cancy on the expiration of the antecedent term. The court
says: By the terms of the constitution, Gale's term was to
cease when a successor should be elected and qualified. His
successor, McCord, was duly elected and duly qualified, and
when that occurred Gale's right to hold over ceased, and the
death of that successor before his term commenced did not re
vive a right in Gale, which ceased when McCord qualified.

The cases which hold, under similiar constitutional provis
ions, that the death of the officer elect before entering into pos
session of his office creates no vacancy, were reviewed and ex
amined, and shown to be based upon the fact that such deceased
officer had not qualified in his office. For this reason these
cases sustain the right of the incumbent to hold over until a
successor shall be elected and qualified.
We regard the doctrine of the Missouri case cited as sound,
and as laying down the correct rule. No well considered case
is cited or known to us which is in conflict.
The points raised by respondent's counsel, that the submis

sion fails to show that the relator was eligible to the office at
the time of his appointment, or that the board of county com
missioners was in open session at the time of the approval of
his official bond, and other similar points, cannot be considered.
Both parties to this record have signed the submission and
statement of facts. It includes the evidence of both parties,
and must be presumed to contain all the disqualifying facts
which the respondent relies upon to defeat the title of the rela
tor. The points in controversy submitted are: First. Was
there a vacancy? Second. Is the respondent entitled to con
tinue to exercise the duties of the office?
Third.
tor entitled to the possession of said office?
Is the rela
492
Sears v. Collins.
No question is submitted as to the eligibility of the relator,

or the manner in which he qualified, nor has the respondent
caused to be inserted in the submission any facts tending to
show an irregularity in respect to any of these points. It will
be presumed, therefore, that none exists.
Nor is there any force in the suggestion that no judgment
can be rendered, for the reason that the submission fails to
state what judgment may be rendered.

The parties having submitted themselves to the jurisdiction
of the court, it will not only determine their rights, but enforce
its adjudication by the entry of an appropriate judgment.
The opinion of the court is, that there was a vacancy in the
office of county judge on the 11th day of January, 1881; that
the respondent is not entitled to continue to exercise the duties
of said office; and that the relator is entitled to the possession
of said office. Judgment will therefore be entered in favor of
the relator.
Judgment for relator.
SEARS v. CoILINs.
After a return of the findings of a jury upon certain facts submitted, the de
fendant asked leave to amend his answer upon a point submitted and already
covered by the answer.
Held, that to have allowed such an amendment
would have been a very questionable exercise of discretion, and that the court
did not err in refusing to tolerate such an abuse of the rules of practice.
Appeal from District Court of Gilpin County.

Mr. CLINToN REED and Mr. L. C. Rockwell, for appellant.

Mr. T. M. PATTERson, Mr. H. B. MoRSE, and Mr. H. M.
ORAHooD, for appellee.
APRIL TERM, 1881.
493
Sears v. Collins.
STONE, J. Action was brought in the District Court by

Collins, the appellee, against Sears, the appellant, to compel a
conveyance of the undivided one-half of a mining claim called
the Rough and Ready Lode.
The complaint alleges that in the summer of 1878, com

plainant Collins, was prospecting for mines near a place called
Missouri Falls, Gilpin county, and that on the 13th day of
July he communicated to Sears, his brothcr-in-law, the fact
that he had found some rich oat or surface ore; and that the
parties then entered into an agreement for the purpose of pros
pecting for and locating mines; that in consideration of the

information given by Collins to Sears concerning the place
where the fragments of ore had been found, Sears agreed to go

there and prospect and search for lodes, and that any and all
such as he might nd he would locate in the joint names ot'
the two parties, each owning an undivided half, and that Col
lins was to pay one-half of the expenses of such location and
work in prospecting and developing the nds.
That under
this agreement they went to the place the next day, July 14th,
commenced work, and that on the next succeeding day, July
15th, while the agreement was in force, Sears discovered the
lode in controversy near where Collins had found the oat ore,
and pointed out as the place to prospect for mines. That Sears
sunk a discovery shaft on the lode, and thereupon afterwards
located and had recorded all of said lode in his own name,
with intent to defraud Collins out of the share to which he was
entitled under the agreement. That the mine had proved to
be valuable, and that Sears had taken out and appropriated to
his sole use a large amount of ore of the value of $1000.
That complainant Collins had performed the agreement on

his part, and had always been ready to pay the one-half of the
expenses, but had not paid the same, for the reason that Sears
had never made demand therefor, nor informed complainant

of the amount of such cost and expense, or that there was any
which he was required to pay. The answer admits that Collins
showed appellant Sears some rich oat ore or blossom rock,
494

Sears v. Collins.
which he stated came from the spot referred to; that on the
said 14th of July the parties went to the place together, but
found no more float ore in the vicinity; that appellant discov
ered the Rough and Ready Lode; that it proved to be valuable;

that he had taken out about $400 from it, and avers that the
cost and expense had equaled the amount of money extracted;

denies that he ever prospected for or discovered any lode for
the joint benefit of Collins and himself, denies that any work
was done under any agreement with Sears; and denies that any
agreement was ever made for their joint benefit, as alleged;
admits that he recorded the lode in his own name, and thereby
acquired title for himself, but denies that Collins is entitled to
any interest therein.
At the trial, certain questions of fact put in issue by the
pleadings were submitted to a jury under instructions of the
court, and upon these questions the jury returned as their
findings:
First. That on or about July 11th, 1878, Collins discovered,
near Missouri Falls, some rich float ore as alleged.
Second. That on or about July 13th, 1878, Collins and
Sears entered into a contract to prospect for, and locate mining
-
lodes near Missouri Falls.
Third. That under said agreement, in consideration of the

knowledge imparted by Collins to Sears of the place where the
surface ore was found, Sears was to prospect for, and locate
such mines of value as he should find near the said Missouri
Falls.
Fourth. That all the lodes discovered by Sears at and near

said place, were, by the terms of the agreement between them,
to be located in the names of both parties and to be owned by
them jointly.
Fifth. That the Rough and Ready Lode was discovered by
Sears near Missouri Falls during the existence of this contract,
and that by the terms thereof the property was to belong to
Collins and Sears jointly.
Upon the return of these special findings by the jury, the
APRIL TERM, 1881.
495
Sears v. Collins.
court made and entered its decree that Sears convey to Collins
the undivided one-half of said Rough and Ready Lode or mining

claim, and that possession be given, etc., as prayed for.
Against this decree the principal objection made by the ap
pellant, is that it was not established that appellee had com

plied with his part of the agreement, respecting the payment
of one-half of the expenses of discovering and locating the mine;

and it is assigned for error, that after the verdict of the jury or
return of the ndings as above stated, the court refused to
allow appellant to amend his answer touching the amount of
money expended by him in developing the Rough and Ready
Lode, and other lodes, in prospecting for lodes during the time
in which it was alleged he was prospecting for himself and

appellant.
We can see no good ground for this objection. There was
no issue made upon this point, and no testimony was offered
respecting it upon either side.
The appellant sets up in his
answer that the expenses equaled the total amount produced
from the mine.
Under the ndings of the jury, one-half this
amount produced belonged to appellee, and since it was appro

priated by appellant, it was properly to be regarded as an ap
plication of the joint funds to such purpose, and a payment as

such by appellee of his share of the expenses, and in discharge
of his obligation under the agreement in this respect. There

was, therefore, no necessity for an accounting upon this point,
as was asked for and refused, since the testimony relating to it
would presumably have been conned to that of the appellant

himself, who alone, it is fair to presume, had knowledge of the
matter of such expenses incurred by him, and who, it is fur
ther to be presumed had truly disclosed this knowledge in his
answer.
It would have been a very questionable exercise of
discretion on the part of the court t_o permit a. defendant, after
all the testimony had been heard upon the questions submitted,
to amend his answer where it already covered this point. Such
a practice would present too great a temptation for the defend

ant to change an averment in his plea, not to make it conform
496
Srrnnun CoUa'r or COLORADO.

Brown v. The State.
to the testimony already given, but to lay out new ground for
testimony he would afterwards seek to give, after the ndings
had been rendered upon all the issues material to a. recovery

by the plaintiff. The court did not err in refusing to tolerate
such an abuse of the rules of practice. The errors assigned
upon the giving and refusing instructions by the court are
not discussed or noticed by appellant in his brief and argu
ment, and will not be noticed here, further than to say that we
fail to perceive error in this particular. Upon the testimony
presented by the record, we regard the decree as properly and
correctly made and entered, and it will be affirmed accord

i ngly.
Decree ajirmed.
Mr. Justice Bncx, having presided as judge of the district
court in the trial below, did not participate in this decision.
Baowu v. THE STATE.

I. It is accepted law, that a State, as a political corporation, may main
tain, in its corporate name and in its own courts, actions for the enforcement
of its rights or the redress of its wrongs independently of any statutory pro
visions therefor.
2. Disseizin, however it may have been formerly, is not necessary to the
maintenance of the action substituted by the Code for ejectment. Disseizin
implies an actual entry and actual adverse possession, which are not essential
under the Code.
3. The State, means the whole people united in one body politic, and
The State," and The people of the State," are equivalent expressions. A
complaint brought in the name of The State of Colorado," is in effect a suit
in the name of The people of the State," and is good on demurrer.
4. Errors occurring in a judgment other than that appealed from, cannot
be inquired into on appeal.
5. The act of the legislature provided for the selection of grounds for cap
itol within the city of Denver," and located the capitol at the city of
Denver." The ground conveyed by the appellant was sixty feet south of t..e
A1BIL TERM, 1881.
497
Brown v. The State.

corporate limits of the city; Held, when the construction of a statute is not
an unreasonable one, and parties having acted upon it and acquiesced in it
for a. long time, justice requires that the courts, for the maintenance of prop
erty rights under it, should uphold the construction given by the parties.
6. The possession of a deed and its record are prima facie evidence of its
delivery and acceptance.
7. Condition subsequent does not work a forfeiture of property conveyed
by a deed until there is an actual breach. Conditions of forfeiture in grants
are not favored, and will not readily be implied. They must be created by
express terms or clear implication, and construed strictly. because they tend
to destroy estates.
8. For some purposes the consideration of a deed may be shown to be dif
ferent from that which is expressed. But the rule is, that this cannot be al
lowed for the purpose of avoiding the deed or varying its effect.
Appeal from District Court q/' Jeerson County.

Messrs. Bnowma & PUTNAM, for appellant.

C. W. WRIGHT, Attorney-general for the State.
Ernrzm, O. J. This action was brought by the State to re
cover possession of certain real property known as the capitol
grounds, situated in the city of Denver. The State had
judgment below, and Brown appealed.
It is assigned for error, (1) That the State cannot main
tain a civil action in the nature of ejectment, or the action
provided for in the Code, of that nature to try the title to
land.
It is -accepted law, that a State, as a political corporation,

may maintain, in its corporate name and in its own courts,
actions for the enforcement of its rights or the redress of its

wrongs, independently of any statutory provision therefor.
The right springs from the general principle that every person,
whether natural or articial, capable of making a contract or

suliering wrong, may have an action to enforce the one and to
redress the other. 1 Dillon Mun. Corp. 106; T/I6 People v.

Tbe U1't_z/ of St. Louie, 5 Gil. 366; Delaelcl v. State of IUi
32
498

Brown v. The State.
nois, 2 Hill, 162; State of Indiamz v. War-man, 6 Hill, 36.
The proposition is broad, and embraces in its general terms

any and every form of action.
In any given case, the na_ture
of the right to be enforced or the wrong to be redressed would

determine the appropriate action. If the State, in a proper
case, may not maintain ejectment, then it is an exception to
the general rule.
The claim is, that disseizin is essential to the action; that
the State cannot be disseized, and therefore cannot maintain

the action.
If we do not discuss the conclusion drawn from these prem
ises, it is not because we admit it. On the other hand, we se
riously doubt the propriety of a rule which allows a defendant

to plead a prerogative of the State to protect himself in a
wrong against the State. There is, however, a fault in the
premises that is fatal to the proposition. Disseizin, however
it may have been formerly, is not necessary to the maintenance
of the action substituted by the Code for ejectment.
Disseizin
implies an actual entry and actual adverse possession. Dis

seizin of things corporal, as of houses, lands, etc., must be by
entry and actual dispossession of the freehold, as if a man
enters by force or fraud into the house of another, and turns,
or at least keeps him and his servants out of possession. Bou
viers Law Dic.
Under the provisions of the Code, an actual entry or actual
adverse possession is not essential.
By Sec. 248 it is provided, If the premises are not actually
occupied, the action may be brought against any person exer
cising acts of ownership on or over the premises claimed, or
who claims title thereto, or some interest therein, at the time
of the commencement of the action.
By this section, an adverse claim of title to, or interest in,
the premises is suicient to support the action.

Under a similar provision in the New York Code, it is held
that ejectment for premises not actually occupied, may be
brought by one claiming title at the commencement of the
APRIL TERM, 1881.
499
Brown v. The State.
suit, though his claim has been manifested by words merely.
Bayer et al. v. Easpie, 5 Hill, 48; Child v. 0/zaprell, 9 New

York, 246.
It is also held that, although the averments of
prior possession and ejectment are made in the declaration, it

is not necessary to prove them, as they are merely formal.
Tyler on Ejectments, 616, and cases there cited.
We must accordingly hold that, as against this objection,

the action is maintainable by the State.
It is assigned, (2) That the plaintiff had no legal capacity

to sue.
The point made is, that the complaint is entitled The State
of Colorado, Plaintiff, etc., instead of The People of the
State of Colorado, in which name all process is required to
run, by Sec. 30, Art. VI of the constitution. To this it is

only necessary to say, that The State means the whole peo
ple united in one body politic, and Tho State and The
People of the State, are equivalent expressions. Pen/tollow
v. Doana, 3 Dal. 93; 1 Storys Con. Sec. 361.
It is assigned, (3) The court erred in overruling defendants
demurrer to plaintis complaint.
The principal points raised by the demurrer were the two
which we have just considered, and if the views we have
already expressed are correct, the demurrer was properly over

ruled.
It is assigned, (4) The court erred in vacating the judgment
of nonsuit, and granting a new trial on plainti"s motion.
Judgment of nonsuit was entered in a trial had before Judge

Bowen at the January term, 1880, of the district court for the
county of Arapahoe, at which time plaintiff gave notice of a

motion for a new trial. At the succeeding March term of the
court this motion was heard and a new trial granted.
At the
same term the venue of the cause was changed to the county
of Jetferson, in the rst district. Afterward, at the April term
of the district court for the county of Jefferson, a trial was had
before Judge Mitchell, which resulted in a judgment for the

plaintiff.
This is the judgment appealed from, and the errors
500

Brown v. The State.
of which we are called upon to review. If there was error in

vacating the judgment of nonsuit and granting a new trial, it
was an error occurring in a former trial, the record of which
is not before us.
If the error was allowed, it would go to a
judgment other than the one appealed from. The pleadings

in the case and the proceedings on the new trial constitute the
record we are reviewing. An error occurring in a former trial
must be reached in some other way.
It is assigned,
the court erred in overruling
the
defendants
motion(5)
forThat
nonsuit.
l
All the questions embraced in the motion for nonsuit are
considered under other assignments, for which reason it is not
necessary to consider them under this.
It is assigned (6), The court erred in receiving in evidence
on behalf of the plaintiff the deed from defendant Brown, con
veying the premises iu dispute to the Territory of Colorado.
Four objections are urged to the admissibility of the deed:
(1) Because the lands conveyed are not within the city of
Denver, as required by the act of the legislature. Revised
Statutes, 90, Secs. 3, 8.
Sec. 1 of this act located and established the seat of govern

ment at Denver.
Sec. 2 provided for the appointment of three commissioners
on behalf of the Territory to select a site within the city of
Denver for the capitol of-said Territory.
Sec. 3 directs that the commissioners shall, within sixty

days, proceed to select a site for the capitol of said Territory
within the said city of Denver, which site shall contain not
less than ten acres of land, etc.
Whether the site conveyed was within the corporate limits
of the city of Denver at the date of the conveyance in 1868,
does not appear, except in so far as a presumption may be in
dulged that the limits prescribed by statute in 1866 (Ses. Laws,

I.
1866), two years prior to the conveyance, remained unchanged.

This presumption is not very strong, in view of the fact that
the limits prescribed by the act were liable, under the pro
APRIL TERM, 1881.
501
Brown v. The State.
visions of Sec. 3 of the act, to be changed at any time by any

owner of adjoining lauds surveying, platting and recording
an addition to the city.
Accepting the presumption, however, as legitimate, we nd
that the site, situated and conveyed, was sixty feet south of the
city limits, as prescribed by the act of 1866. This certainly
is not a very wide departure from the directions of the act, if
we were to accept the construction that the site was to be
within the corporate limits of the city.

This construction, however, is by no means a necessary one.
By Sec. 1 the legislature located the seat of government at
Denver. Did they mean anything else in Secs. 2 and 3,
where they use the phrase within the city of Denver?
Would not any more denite intention have been more de
nitely declared? In view of the nature of the act to be done,
the necessity not only for a convenient, but also an appropri
ate and tting site for capitol buildings, the diiculty of secur
ing so large a body in any platted citythe construction is not
an unreasonable one. This was evidently the construction put
on the act by the appellant Brown and the commissioners, for
the deed recites the title of the act, and declares the convey
ance made in pursuance thereof. 3 Three propositions may be
stated:
First. If the construction was erroneous and the site se
lected therefore not within the intent of the act, it was for the
State to object; not having objected, but on the other hand

having acquiesced in the selection for a long term of years, the
State is to be taken as having adopted and ratied, not an ille

gal act, but the construction of the law put upon it by its
public agents, and which brought the site selected within the
intent and meaning of the law.
Second.
If Brown was acting in good faith at the date of
the conveyance, and we take it for granted he was, this was

the construction which he placed upon the law, for his convey
ance is made in pursuance of the act. Having acted under

this construction, having acquiesced in it for a long period of
~
502
SUPREME COURT or Cononaoo.

Brown v. The State.
years in common with the State, and having received the pre
sumable benets arising from such location on his land, he is
not at liberty to abandon it at pleasure and to insist upon

another construction which would avoid his conveyance.
Third.
When a construction of a statute is not an unrea
sonable one, and parties have acted upon and acquiesced in it
for a long period of time, justice requires that courts, for the
maintenance of property rights acquired under it, should up
hold the construction given by the parties.
It is objected to the deed (2) that there was no acceptance
of the donation, either express or implied.

The possession of the deed and its record are pr-ima facie
evidence of its delivery to, and acceptance by the commission
ers (2 Greenleaf Ev., See. 29), and no other or further accept

ance was necessary.
The act itself accepts the property upon the conveyance be
ing made in pursuance of its provisions. It says: If the site
so selected shall be conveyed to the Territory of Colorado * *
* * so as to vest the title for the same absolutely and in
fee simple in said Territory, the site so selected shall be and
remain the property of said Territory, etc. * * *
It is objected (3) that there was no evidence of a perform
ance of the condition mentioned in the deed and the act under
which the deed was made.
Section 3 is as follows: The persons appointed * * *
shall, within sixty days, * * * proceed to select a site for
the capitol of said Territory within said city of Denver, * *
and if the site so selected shall be conveyed to the Territory
of Colorado by the person or persons holding the title thereto
without charge to said Territory, and so as to invest the title
to the same absolutely and in fee simple in said Territory, the
site so selected shall be and remain the property of said Terri
tory, for the purpose of erecting a capitol and other public
buildings thereon.
The conveyance of Brown recited, the said land being so
conveyed to said Territory in pursuance of an act entitled, an
0
APRIL TERM, 1881.
503
'
Brown v. The State.
act to locate the seat of govermnent of the Territory of Col

orado * * * so as to vest the title to the same absolutely
and in fee simple in said Territory, and to remain the prop
erty of said Territory, for the purpose of erecting a capitol
and other public buildings thereon only.

If any condition exists here it is a condition subsequent.
A condition subsequent is one operating on an estate already
created and vested, and rendering it liable to be defeated.
Whether the proper interpretation of the language of the con
veyance, with reference to the statute, would result in a decis

ion that it was absolute and unconditional, or upon a condition
subsequent, which, upon location and erection of capitol build
ings elsewhere, would work a forfeiture, it is not necessary to

say.
If we accept the theory of appellant, and treat the convey
ance as conditional, the only condition expressed relates/to the
use of the premises, 2'. e., for the purpose of erecting capitol
and other public buildings thereon only. There is no pre

tense that there has been a forfeiture by use of the ground for
other purposes than those specied.
The proposition that the provision in the Constitution for

submitting the question of the permanent location of the seat
of government to the qualied electors of the State, works a

forfeiture in advance of any action under it, need not be ar
gued. Until the election provided for, the constitution con
tinues the seat of government at Denver, and the election may
have no other result. But whatever the result may be, as yet
there is no act of forfeiture under this constitutional provision.
This is the only express condition of the deed, and of this
there has been no breach.
The appellant claims that the failure of the State to com

mence the erection of capitol buildings on the site is a breach
of the conditions of the_ deed.
If so, it is a breach of an im
plied, and not of an express condition, for nowhere do we nd
any time limited within which capitol buildings must be com

menced or completed.
504
Brown v. The State.
It is a rule of law that conditions of forfeiture in grants are

not favored and will not be readily implied. 2 Par. Con. 526.
They must be created by express terms or clear implication,
and are construed strictly. 2 Wash. R. P. 447. Says Mr.
Kent, They are to be construed with great strictness, because
they tend to destroy estates, and the rigorous exaction of them
is a species summum jus, and in many cases hardly reconcil

able with conscience.
4 Kent's Com. 130.
In New York it is held that conditions cannot be sustained
by inference or recital.
198.
Woodworth v. Payne, 74 New York,
That there must be some words which ex vi term ini
import that the vesting or continuance of the estate is to de
pend upon the supposed condition. Craig v. Wells, 11 New

York, 320.
No words are to be found in the deed of Brown which indi
cate any intention to limit or fix the time within which the
State is to commence the erection of its capitol buildings. The
language of a deed is to be construed most strongly against
the grantor and beneficially for the grantee. It is the lan
guage of the grantor, and the principle of self-preservation
and self-interest are supposed to make him sufficiently careful
not to prejudice his own interest. Broom's Leg. Max. 594.
The deed being entirely silent upon the subject, the clear
and rational construction is, that the grantor was willing to
leave the time for commencing its public buildings to the de
termination of the State. If such was not the intention, it is
the grantor's own fault that such a condition was not inserted
in the deed.
This court cannot, upon some supposed hardship, defeat an

estate by implying a condition which the grantor has not ex
pressed, nor in the least intimated by the language of his con
veyance.
If it can be said, as is claimed, that there is an implied con

dition that the State should commence and erect its buildings
within a reasonable time, I do not see that any other result can
be arrived at.
APRIL TERM, 1881.
505
Brown v. The State.
Capitol buildings are usually large structures, requiring

large sums for their construction, and involving increase of the
public indebtedness. When a young State is sufficiently
strong financially for such an expenditure, is a question for its
prudent statesmanship to determine, looking to the best inter
ests of the public. Rented government buildings served the
purpose of the Territorial government, as they have and do
serve the purpose of our present State government, and who
shall say that both Territorial and State legislatures have not
acted wisely and prudently in this postponement of an under
taking which would largely increase the public burthens?
Who shall say that there has been a delay for an unreasonable
time, having reference to our sparse population, slender reve
nues, and other prudential considerations which control legis
lation in the public interest?
When the grantor failed to insert in his conveyance, for his
own protection, a condition fixing a time within which the
State should act in this matter, he thereby tacitly subordi
nated his individual interests, not, perhaps, to the mere will
and pleasure of the State, but certainly to the interests of the
State, and if any condition of reasonable time can be implied,
it must be measured largely, if not exclusively, by the inter
ests of the public.
To imply a condition that would require the State to build
within a reasonable time, having reference to the individual
interests of the grantor, would be to make to that extent a
contract for the parties.
Tested by this rule, we are not able to say that the State has
unreasonably delayed the erection of capitol buildings.
The fourth objection to the deed is based on the supposed
e ect of the constitutional provision submitting the location
o the seat of government to a vote of the people, and has al
ready been considered. The same considerations are applica
ble to the further claim, that the Territory could not accept
the grant, because, under Sec. 12 of the organic act, any sub
sequent legislature had the power to change the seat of govern
506
SUPREME Cover or COLORADO.

Brown v. The State.
ment to some other place. This is nothing more than saying

that the grantee could not take because it had the power to
forfeit the grant by breach of the conditions. Such a power in
the grantee is pre-supposed in every conditional grant, other
wise there would be no necessity for a condition. The objec
tions urged against the admissibility of the deed were not

well founded, and it was properly received as evidence of the
plainti"s title.
It is assigned (7), The court erred in refusing to allow de
fendant, Brown, to show that the consideration of $1,000, ac
knowledged as received in the deed, * * * was other than

actual money.
For some purposes, the consideration of a deed may be
shown to be different from that which is expressed. But the
rule is, that this cannot be allowed for the purpose of avoid
ing the deed or varying its effect. Mr. Washburn states the
rule as follows:
Although it is always competent to control the fact stated

in the deed as the amount or thing paid, in a question involv
ing the recovery of the purchase money, or as a measure of

damages in actions upon covenant in the deed, it is not com
petent to contradict the acknowledgment of a consideration

paid, in order to affect the validity of the deed in creating or
passing a title to the estate thereby granted, etc. 3 Wash.
R. P. 614.
Again, he says, The true doctrine is stated in G-rant v.
Towrwend, 2 Hill, 554, that when a deed acknowledges the

receipt of a consideration, the grantor, and all claiming under
him, are estopped from denying that one was paid. They may
disprove the payment for the purpose of recovering the con
sideration mouey, but they cannot do so for the purpose of
destroying the effect and operation of the deed. Ib. 619.
The authorities cited by the counsel for appellants lay down
no different doctrine.
There was no error in excluding the evidence.
We have thus considered all the questions raised by the
record which we deem entitled to notice.
APRIL TERM, 1881.
507
Brown v. The State.
The same questions are not infrequently presented in sev

eral forms and at different stages of the trial, but the views
we have expressed are equally applicable in whatever form the
questions may have arisen.
The sum of the matter is this: On the 11th day of Janu
ary, 1868, the appellant Brown, for a valuable consideration,
granted, bargained, sold and conveyed to the Territory of Colo
rado the premises in dispute, by a good and sufficient deed,
duly sealed, signed and acknowledged, in accordance with all
the forms of law. We find.no good reason for not enforcing
the rights of the State under this deed. In dealing with it,
we are governed by certain well settled rules. It must be in
terpreted that the matter may be of validity sooner than be
lost, or, as the maxim runs, ut res magis valeat quam pereat.
Such a meaning must be given it as may carry out and effect
uate to the fullest extent the intention of the parties. (Broom's
Leg. Max. *541.) If it contains express conditions, they are
to be construed stricti juris. 4 Kent, supra. If conditions
are to be implied, it must be with caution, upon clear grounds,
and from words which, ex vi termini, import that the vesting

or continuance of the estate is to depend upon the supposed
condition. Craig v. Wells, 11 N. Y. 321.
We do not decide that the deed is conditional, but for the
purposes of this case we have treated it as conditional, and
find no sufficient ground for saying that the grant has been de
feated or forfeited by reason of a breach of its supposed con
ditions, either express or implied.
The judgment of the court below is affirmed.

Judgment affirmed.
508
SUPREME Courrr or Coroaano.

Elkin v. The People.
ELKIN v. THE PEOPLE.

The weight of authority clearly establishes the rule that to permit a jury
to separate under charge pending the trial of a murder ease is not error per
se; and it not appearing that the rights of the prisoner were affected by such
separation, the cause will not he reversed. The practice, however, of allowing
juries in such cases to separate, though with consent of the accused, is re
garded as highly improper.
Error to District Court of Lake C021/nty.

S. E. BROWNE and A. W. Ruoxsa, for plaintiif in error.
A1"I0RNl-JY-GENERAL, for defendant in error.

BECK, J.
The trial below was upon an indictment for mur
der, resulting in a verdict of guilty, upon which the prisoner
was sentenced to the penitentiary for and during his natural life.
The single error assigned is, that the court by consent of
counsel for the prisoner, and on part of the State as well,

permitted the jury to separate at one of its adjournments
during the progress of the trial.
The bill of exceptions discloses the facts, which were, that

at the close of the testimony on the part of the people, being
about the regular hour for adjournment in the evening, the

judge inquired, in presence of the jury, if consent would be
given for the jury to separate until the hour of eight oclock
next morning. Counsel for the prisoner and for the People
both responded airmatively; whereupon the judge gave the
jury proper instructions concerning their duty during the ad
journment, and permitted them to separate until next morn

ing.
It is not pretended that any juror was guilty of misconduct
during the interval of separation, or that any improper inu
ences were brought to bear upon any member of the panel.
APRIL TERM, 1881.
509
Ex parts Stout.
The position assumed is, that the fact of separation was err or
par ae, for which the judgment should be reversed.
The decided weight of authority is so clearly the other way
in cases like the present, that we deem it unnecessary to re

view the decisions bearing upon the point. The subject is
fully considered, and many authorities cited in Stephens v. The
People, 19 N. Y. 549; see also, 1ll_cK/inney v. The People, 2

Gil. 540, and Jumpertz v. The People, 21 Ill. 409.
It is proper to observe, however, that we regard the practice
of permitting jurors to separate during the trial of an impor
tant criminal case of the grade of felony, and especially in
murder cases, as highly improper, even though the consent of

the prisoner be obtained therefor.
Such trials sometimes create considerable excitement in the
public mind, and jurors being men, areliable to imbibe some

what of the popular prejudices of the hour, if permitted to
mingle with the masses during the progress of the trial.
It not appearing that the rights of the prisoner in the pres

ent case were affected by the separation, the judgment will be
airmed.
Judgment armed.
Ex PARTE JALIFS D. S'rou'r.

Under the Constitution, criminal courts may be created by local or spe
cial " acts, but their organization, jurisdiction and practice must be provided
for by general laws, of uniform operation throughout the State.
Pmmon for writ of habeas corpus.

Messrs. Bnsznn & Snarorrrn, for petitioner.
Mr. I. E. Bzumuu, for respondent.
510

Ex parts Stout.
BECK, J. This is a petition for a writ of kabeas corpus

presented by James D. Stout, who states that Charles VV.
Wright, pretending to act as judge of the criminal court of

Arapahoe county, on the 18th day of March, 1881, caused the
petitioner to be brought before him, and tried before a jury,
upon an indictment charging the petitioner with the crime of
petit larceny. That the ury returned a verdict of guilty, and
that afterwards, on the 26th day of March, said ndge sentenced
the petitioner upon said verdict, to thirty days imprisonment

in the county jail of Arapahoe county.
'
The petition charges, among other things, that the act estab
lishing the criminal court of Arapahoe county is unconstitu

tional and void.
The sheriff and jailer of said county return as the cause of

imprisonment, that they hold the petitioner in custody under
and by virtue of a mittimus issued out of and under the seal
of the criminal court of Arapahoe county.
The controlling question presented by the petition and re
turn to the writ is, whether the prisoner is in custody by vir
tue of process from a court legally constituted.
Under the provisions of section 3 of our lzabeas corpus act,

(G. L. p. 497,) if it appears on the hearing that the process by
virtue of which the prisoner is restrained of his liberty has

been issued by a person unauthorized to issue the same, or, if
it appears that he is in custody by virtue of process from a
court not legally constituted, the prisoner may be discharged.
If the act creating this criminal court, providing for its or
ganization, establishing its jurisdiction and regulating its
practice is unconstitutional, the judgment is void, and the
prisoner is illegally deprived of his liberty. Herck v. /S'me.Tth,

1 Gray, 49.
Section 24, article 6, of the Constitution, which provides for
the creation of criminal courts, is as follows: The General
Assembly shall have power to create and establish a criminal

court in each county having a population exceeding fteen
thousand, which court may have concurrent jurisdiction with
APRIL TERM, 1881.
511
Ex parte Stout.
the district courts in all criminalhcases not capital; the terms
of such courts to be as provided by law.
Under this section two separate local or special acts were

passed at the recent session of the legislature, one creating
and establishing a criminal court for Arapahoe county, and
the other, a similar court for Lake county.
We were called upon recently to consider the constitutional

ity of that portion of the latter act which provided for the ap
pointment of a judge, and for lling vacancies in said otce.
But the question of the constitutionality of the act as a whole
was not raised and could not be properly considered. The val
idity of the Arapahoe county act is now challenged, on the
ground that it violates two sections of the Constitution, viz:
Section 25 of article 5, and section 28 of article 6.
The former
provides that The General Assembly shall not pass local or

special laws in any of the following enumerated cases; that is
to say, * * * regulating the practice in courts of justice
* * * providing for changes of venue in civil or crimi
nal cases, * * * summoning or impaneling grand or petit
juries, * * * in all other cases where a general law can
be made applicable, no special law shall be enacted.
The latter section is as follows: All laws relating to courts
shall be general and of uniform operation throughout the
State, and the organization, jurisdiction, powers, proceedings
and practice of all courts of the same class or grade, so far as

regulated by law, and the force and effect of the proceedings,
judgments and decrees of such courts severally shall be uni
form.
Three principal propositions are relied upon to maintain
the validity of the act:
First. That the constitutional provision, which authorizes
the creation of criminal courts in counties_havinga population
exceeding 15,000, does not contemplate that every county hav
ing the requisite population shall have such a court, but that
courts of this character may be established from time to time,
in the discretion of the General Assembly, as necassity or ex

pediency may require.
512

Ex parte Stout.
Second. That 9. general act cannot be made applicable for

the purpose.
Third. That the question whether a general law can be
made applicable is exclusively a question for the legislature,
and its discretion concerning the same is not subject to review
by the courts.
There is great force in the rst proposition, and we are of
the opinion that the section of the constitution which provides
for the creation of criminal courts is susceptible of the con
struction stated. It is a well known fact that there is more
crime, hence a greater necessity for courts, where large bodies
of people are thrown together, as in populous cities, than where
the people are distributed over extensive areas of land, as in

the agricultural districts, or even in the smaller towns and vil
lages throughout the country.
r
It is not every county possessing the requisite population
which would need a criminal court; perhaps but a small pro
portion of such counties would either require or desire such a
court.
In this view of the subject the power of deciding when
such necessity exists, may perhaps be properly left to legislative

discretion. It is certainly true that ageneral law creating and
establishing criminal courts in all counties possessing the requi
site population, would in many instances prove not only un
necessary, but burdensome to the people as well.
But it does not follow that if the legislative assembly be in

vested with power to create criminal courts by local or special
acts from time to time, as occasion may require, that it may
also by the same, or acts of like character, determine the man

ner of organization, the extent ofjurisdiction, or prescribe the
practice of such courts.
This brings us to the consideration of the second and third
propositions above stated, which may be considered together,
viz.: Whether a general law can be made applicable for the
purposes indicated, and whether the decision of this question
rests in legislative discretion.
Section 28 of article 6 expressly requires the enactment of a.
APRIL TERM, 1881.
513
Ex pirte Stout.
general law which shall have ii. uniform operation throughout

the State for the above mentioned purposes. The case is enu
merated in the constitution, and its provisions are both man
datory and prohibitory. The two sections of the constitution
bearing upon the point summarily dispose of the point made
in respect to legislative discretion by the positive requirements
that only a general law shall be effectual for such purposes.
No discretion is invested in the legislature concerning the
character of the law by which the organization, jurisdiction,
powers, proceedings and practice of these courts shall be pre
scribed and regulated. The direction is peremptory that it
shall be a general law of uniform operation throughout the

State.
Being an enumerated case, in the fundamental law, the author

ities cited by counsel in respect to legislative discretion under
different constitutional provisions, cannot control.
The law
under which the criminal court of Arapahoe county was organ
ized, and from which the power and practice claimed for it
are derived; it is clearly a special or local act, as those terms
are employed in the constitution. The form and scope of the

entire act is conned to a single county and to a single court.
It is not general in any sense of the term, and it is not suscep
tible of a construction which would give it a uniform opera

tion.
All clauses and sections of the constitution relating to courts,
admit of a construction permitting criminal courts to be cre
ated from time to time, as necessity may require, but they are
incapable of a construction which would authorize the legisla

tive assembly to provide for their organization, and to prescribe
their jurisdiction and practice by special or local laws.
It is well known that the inhibitions relating to courts in
the constitution were designed by the framers of that instru
ment to cure evils then existing in the jurisdiction and prac
tice of the Territorial courts, and to prevent a recurrence of
such evils under the State government. The effect of these
constitutional provisions was to blot out of existence the
33
514

Ex parte Stout.
munerous special Territorial laws relating to courts, and to

deprive the State legislature of power to re-enact the same or
pass similar laws.
It is a historical fact that, prior to the adoption of the con
stitution, the jurisdietion and practice of courts of the same
class were often as diverse as if such courts were located in
different States or Territories. The Arapahoe County Probate
Court act; the Gilpin county certiorari act; the act oi 1872
superseding indictments in two counties of the State in cases
of misdemeanors and crimes not capital, by requiring infor
mations to be led in such cases; and local acts dening the
jurisdiction and practice of justices of the peace in certain
counties, furnish illustrations of the character of the Territorial
legislation which had prevailed.

It is admitted by counsel, that the provisions of our consti
tution now under consideration were borrowed from the con
stitution of 1870 of the State of Illinois. A reference to the
decisions of the Supreme Court of that State, rendered since
the adoption of that instrument, shows that the same character
of legislation prevailed there as here, prior to its adoption, and
that the provisions against the passage of special or local acts
relating to courts were inserted for the purpose of restoring
and securing uniformity in the organization, jurisdigtion and
practice of courts of the same class or grade. These provis

ions have been held to be both mandatory and prohibitory in
that State. 1/tillips v. Quick, 63 Ill. 445; OO0nner v. Led
rly, 64 Ill. 299; Frantz v. Fleitz, 85 Ill. 362.
The two acts establishing criminal courts, passed by the last

legislature, are shown by the journals to have been contempo
raneous in their passage through both houses, and in their au
thentication by the presiding otlicers thereof, and, since neither
act received the executive approval during the session, it cau
not be held that either constitutes a standard to which the
other and subsequeutacts must be held to conform, even if the
local character of the same be left out of question.
There is, indeed, great similarity in many respects, in these
APRIL TERM, 1881.
515
Ex parte Stout.
acts, but similarity does not satisfy the requirements of the
constitution.
Only a general law will do this, under which
all courts of this class, which may be created, can be organ

ized, and which shall dene their powers and establish their
practice.
In no other manner can uniformity be secured,
For example: There is a similarity between the two acts in re
spect to the appointment of judges. Under the Lake county

act, a judge was appointed by the governor and another judge
by the county commissioners. A constitutional provision re
quired us to sustain the appointment of the county commis
sioners. The legality of the governors appointment is again
challenged in the present case, and, were it necessary to con
sider and decide the point, we should probably be able to sus

tain the appointment in this instance. And when it is consid
ered that one act contains twenty-four sections, the other but
seventeen, and that the phraseology and arrangement of the
subject matter of the two acts are essentially dierent, the

want of uniformity becomes apparent.
The act under consideration is clearly a special or local act,
applicable to the criminal court of Arapahoe county only, and

wholly independent of the Lake county act in every respect.
The conclusion is therefore inevitable, that the plain and un
ambiguous requirements of the constitution, that all laws re

lating to courts shall be general and of uniform operation
throughout the State, and that the organization, jurisdiction,
powers, proceedings and practice of all courts of the same class

or grade, so far as regulated by law, shall be uniform, have
been wholly disregarded in the passage of this law. It is
equally clear that the other constitutional provision has been
violated, which prohibits the enactment of local or special
laws regulating the practice in courts of justice, and in all
other cases where a general law can be made applicable.
The act is constitutional, in so far as it creates a criminal
court for Arapahoe county, but no further.

We are not insensible of the fact that, in deciding an act
passed by a co-ordinate branch of the State government to be
olb
-v
1
SUPREME Connr on Cononsno.
null and void, we assume a weighty responsibility and per

form a very delicate duty. But the constitution is the para
mount law, and its supremacy must be asserted whenever a
legislative enactment comes clearly in conict with it. Cooleys
Const. Lim. pp. 159, 160.

It does not appear, from the submission in the present case,
whether the indictment was found in the criminal court or in
the district court. It does appear, however, that on the 26th
day of March last the prisoner was sentenced to thirty days
imprisonment in the county jail of Arapahoe county; conse
quently that at the present date he has served twenty-seven
days of the term allotted to him. In consideration of these
circumstances, we deem it unnecessary, in the present instance.
to require the production of testimony as to the existence of
legal cause for the commitment of the prisoner, with a view

of admitting him to bail to answer an indictment of the dis
trict court, as it would otherwise become our duty to do under
the provisions of the kabeas corpus act, but will direct that
the prisoner be discharged.
mi
THE Conoasno CENTRAL R. R. Co. v. Honms.
UPON petition for rehearing, the following opinion was

rendered:
Srorm, J. The decision of this court adversely to the plain
ti', was based upon two principal conclusions, derived from
the testimony: rst, that she was guilty of gross and culpable
negligence in going upon and walking along the railway tracks
of the defendant, at the place where the injury to her occurred;
and, second, that the defendant could not, by the exercise of
ordinary care, have avoided the injury, notwithstanding the
contributory negligence on her part.
APRIL TERM, 1881.
517
The rehearing is sought upon this last proposition.
Coun
sel for petitioner takes issue with the court upon the conclusions
deduced from the testimony, and also questions the correctness
of the court in its setting forth in the opinion certain portions

of the testimony itself.
After patiently going over the entire record, and closely ex

amining it in connection with the opinion, and with the
lengthy petition for rehearing, and comparing the statements
of the evidence in each, I am more than ever satised of the
correctness of the opinion, and shall only proceed to point out
a few of the most patent errors into which counsel has fallen,
through what may be charitably attributed to his zeal for his
client.
Referring to his allegations of recklessness in the railway

management at the time of the injury to plaintiff, the petition
says:
As to the rst of plainti"s propositions, this court has in
effect said, that making a ying switch under the attendant
circumstances, in a populous part of the city of Denver, is so
entirely proper that a jury should not say whether it was reck
lessness or not.
With this conclusion we are content, not
withstanding the courts of every other State which have passed

upon it, do not hesitate to characterize such management of a
train as gross carelessness; and in the case of Brown v. The N.
Y. U. R. R. 32 N. Y. 602, the court added we should hesi
tate to say the company could not be held toa criminal respon
sibility.
,
This court announced no such conclusion as counsel inti
mates. The locus in. guo was not in a populous part of the city
of Denver. On the contrary, as the testimony shows, it was
within the switching yard of the railway com pa.ny,- at the
north side of the town, where there was no street or other
public crossing, and where only a few small houses were scat
tered about in the Platte river bottom, and where, as witness,
Kirchoff, who lived there, stated, the weeds grew in places
along the track from six to eight feet high.
018

Nor have the courts all held as counsel asserts.
The opin
ions have been expressed upon the particular facts presented.

In the New York .case cited, the ying switch was made
where the tracks crossed the main street at a point of much
travel in a densely built portion of the village, and where in
approaching the street crossing the view of the railway was

greatly obstructed by houses, trees, shrubbery and fences. The
collision occurred with a vehicle which was crossing the track
in the street, and had a right to be there and to cross at the
time, and no warning or signal \vas given of the approach of

the cars. There is no point in the citation of such a case, and
this was fully examined in the opinion.
Again counsel says in his petition:
"' It' we leave out of question the facts (as the court has ex
pressly done), that this was a ying switch, being made in a
populous part of the city of Denver, upon a part of the track
crossed at short intervals by public streets, etc., etc.
The witness, Rollins, the civil engineer, who laid out and
platted the tracks and yard of the railway company, testies that
18th street ends short of the railway tracks: that it does not
cross any track; the accident occurred on no street and not on
ground where a street has been laid out.
Witness Kircho' testifies: There is no one living between
18th and 19th streets on the side next the river; there is no
house there; people that pass there come from beyond 19th
street; nineteenth street is not graded; is two or three feet
and in places three or four feet below the grade; is very un
even, and water standing over it on the block next the rail
way track. He stated in another place that there were twen
ty-ve or thirty houses up 19th street toward the river.
This testimony as to streets and population in that vicinity,
is not contradicted, or sought to be, anywhere in the whole
record.
Counsel says: The reason we are in earnest, is because
the opinion, if it stands, practically deprives us of another
trial; it is as though this court should order a dismissal of the

cause, or a judgment for the defendant.
APRIL TERM, 1881.
519
This statement seems merely begging the question. The

decision complained of does not preclude a better showing or
another trial.
The witnesses all agree that when plaintiff left the main
track, on hearing the alarm whistle, s11e walked diagonally
across the yard to'the second switch, or third track.
The
plaintiff testies that she was trying to get o all the tracks.
In this she is supported by her witnesses, Breck and Kirchotf.

Defendants witnesses, Mahoney and Martin, testify that when
she reached the second switch, she turned and walked along
the track toward the depot, on the ends of the ties.
If the rst statement be correct, the train men had reason to
believe the plaintiff would get out of the way of the cars. If
the second statement be true, that she was Walking on the ends
of the ties, her danger was not so great, nor as much notice
necessary to enable her to avoid injury, as if she had been
walking between the rails. A single step would take her out
of the way of the cars.
The suggestion of counsel, that Mahoneys testimony was
to the effect that plainti walked on the third track a distance
of one hundred feet, is not correct. A fair interpretation of
his testimony is, that she walked in this manner one hundred
feet after he discovered her on the main track, when she was
one thousand feet in advance of the train. Kircho' says she

left the main track thirty or thirty-ve feet after passing his
house. She then walked diagonally over to the third track.
Martin says she was about one hundred feet ahead of the cars
when they reached the switch, which was shown to be opposite
Kircho"s house. It is apparent therefore from all the testi
mony that a very short interval transpired from the moment
plaintiff reached the third track until the accident occurred.
If it be admitted that the cars were stopped in from thirty to
sixty feet thereafter, as argued by counsel in their petition for
rehearing, such fact strongly corroborates defendants witnesses,
as to the low rate of speed at which the train was moving on
the switch, and is inconsistent with the charge of gross negli
geuce in its management.
o20
:
SUPREME Couur OF Cononsno.

It is conceded that plaintiff was guilty of gross negligence

in walking upon these tracks and switches on the private
grounds of the defendant, where she had no right to be. It
was also gross negligence to cross or walk upon the switches
without looking behind her or taking any precaution to ascer
tain whether cars were moving thereon. ' She assumed that
there were no moving cars upon the switches at her peril.
Under no view of the case can plaintiff lawfully recover, un

less the railroad company is chargeable with gross negligence.
The servants of the company may not have done the best that
could have been done under all the circumstances, nor does
the law require this ; but we are satised that the evidence did
not warrant the jury in nding, under the circumstances in

proof, that they fell so far short of their duty as to make them
justly chargeable with gross negligence, still less with a de

gree of negligence which amounts to recklessness. The charge
that plainti' was wantonly run down, is unsupported by the
record.
In a rather recent case, decided by the court of appeals of

Maryland, the following language upon this point is employed:
We have said more than once that cases may and do occur,
where the court is required to declare some plain act of care
lessness on the part of the plaintiff to be in law, such contrib
utory negligence as will prevent a recovery; or on the other
hand, where the proof of negligence on the part of the defend
ant is so slight and incoiiclusive in its nature as to demand
from the court an instruction as to its legal insufficiency to

prove negligence, in order to prevent the jury from indulging
in wild speculation or irrational conjecture. In this, as in all
other cases, the burden of proof is on the plaintiff, and although

it is the province of the jury to decide matters of fact, when
evidence legally suicient is submitted to their consideration,
yet this legal ezqiciency is a question of law, of which the
court is the exclusive judge. Lewis v. T/w Balti-more ck

Ohio R. R. U0. 38 Md. (Court of Appeals), 588. See, also,
The Ill. Cent. R. R. (J0. v. Godfrey, 71 Ill. 500, which is in
APRIL TERM, 1881.
521
Ex parte White.
point upon the principal questions raised in this case.
A find
ing or conclusion from the evidence that either there was want
of ordinary care on the part of the defendant, or that by the

exercise of such care, the injury to plaintiff could have been
avoided, notwithstanding her own gross and contributory neg
ligence, is unwarrantable and cannot stand.
Reluctant as we are to disturb the finding of a jury upon

the facts, we shall not hesitate to do so where the impartial
administration of justice requires it to be done.
The motion for a new trial should have been allowed.
Ex PARTE WHITE.
All laws regulating the proceedings, practice and jurisdiction of courts
must be general; and the provisions regulating these matters, as regards the
Criminal Court of Lake County, being local, the act is, in so far, unconsti
tutional.
PETITION for Writ of Habeas Corpus.

Mr. G. G. WHITE, for petitioner.
Messrs. C. S. THOMAs and H. B. JoHNSON, contra.
PER CURLAM.
In the case of State v. Rucker, decided at
the present term, the constitutionality of the Lake county

criminal court act was called in question, (1) in so far as it
made the office of criminal judge appointive, and (2) in so far
as it vested in the governor the power to fill vacancies therein.
In all other respects its constitutionality was conceded, and in
no other respect was or could its constitutionality be properly
considered by the court.
The act is now challenged as unconstitutional on other
grounds, to wit: As violating section 25 of article V, and

section 28 of article VI of the Constitution.
C
I NJ
[O
SUPREME COURT or Conoaaoo.
Ex parte White.
The former provides that The General Assembly shall not
pass local or special laws in any of the following enumerated
cases: that is to say, * * * regulating the practice in
courts of justice, * * * providing for changes of venue
in civil or criminal cases, * * * summoning or impaneling
grand or petit juries; * * * in all other cases where a
general law can be made applicable, no special law shall be en
acted.
'
The latter section is as follows: All laws relating to courts

shall be general, and of uniform operation throughout the
State, and the organization, jurisdiction, powers, proceeding
and practice of all courts of the same class or grade, so far as
regulated by law, and the force and effect of the proceedings,
judgments and decreesof such courts severally, shall be uni
form.
.
By this it will be seen that the same questions are present
ed that were presented in the late case of ear: parte Stout, de
cided at the present term, in which the constitutionality of the
Arapahoe county criminal court act was considered. The de
cision in that case must control the decision in this.
In that case Mr. Justice B1501: says: But it does not fol
low that if the legislative assembly be invested with the power

to create criminal courts by local or special acts from time to
time, as occasion may require, that it may also by the same,
or acts of like character; determine the manner of organization,
the extent of jurisdiction, or prescribe the practice of such

courts. * * *
No discretion is invested in the legislature concerning the

character of the law by which the organization, jurisdiction,
powers, proceedings and practice of these courts shall be pre
scribed and regulated. The constitutional direction is peremp

tory that it shall be a general law of uniform operation through
out the State. * * * All clauses and sections of the consti
tution relating to courts admit ofa construction permitting crim
iual courts to be created from time to time, as necessity may re
quire, but they are incapable of a construction which would
APRIL TERM, 1881.
523
Ex parbe White.
authorize the legislative assembly to provide for their organi

zation, and to prescribe their jurisdiction and practice by spe
cial or local laws. * * * The two acts establishing crin.
inal courts, passed by the last legislature, are shown by the jour
nals to have been contemporaneous in their passage throu_~_~h
both houses, and in their authentication by the presiding oili
cers thereof, and, since neither act received the executive ap

proval during the session, it cannot be held that either consti
tutes a standard to which the other and subsequent acts must
he held to conform, even if the local character of the same be
left out of question.

There is indeed great similarity, in many respects, in
these acts, but similarity does not satisfy the requirements of
the constitution. Only a general law will do this, under

which all courts of this class which may be created can be or
ganized, and which shall dene their powers and establish their
practice. In no other manner can uniformity be secured. * *
\Vhen it is considered that one act contains twenty-four
sections, the other but seventeen, and that the phraseology and
arrangement of the subject matter of the two acts are essen

tially different, the want of uniformity becomes apparent.
The act under consideration is clearly a special or local
act, applicable to the criminal court of Arapahoe county only,
and wholly independent of the Lake county act in every re
spect. The conclusion is therefore inevitable that the plain

and unambiguous requirements of the constitution, that all
laws relating to courts shall be general and of uniform opera
tion throughout the State, and that the organization, jurisdic
tion, power, prooeeding and practice of all courts of the same

class or grade, so far as regulated by law, shall be uniform,
have been wholly disregarded in the passage of this law. It
is equally clear that the other constitutional provision has been
violated which prohibits the enactment of local or special laws
regulating the practice in courts of justice, and in all othe|'
cases where a general law could be made applicable.
The act is constitutional in so far as it creates a criminal
court for Arapahoe county, but no further.
Z54

Ex parts White.
For the same reasons we must say that the act in question is
constitutional in so far as it creates a criminal court for the
county of Lake, but no further.
It is hypercritical to say that the term court in this connec
tion implies ajudge.
Ordinarily, in legal phrase, it does; but
when the legislature establishes a court, it must go further

and provide for the appointment or election of the judge there
of. Without such a provision the act would be inoperative.
Our view, as expressed in ea: part" Stout, was, that in this
respect, as well as others, the laws governing the criminal
courts of the State should be uniform; that judges of these
courts should be elected or appointed, and vacancies lled by
a uniform system. That the two acts in question were not
uniform in this respect, was pointed out in the opinion.
Justice Bsox says:
Under the Lake county act, a judge was appointed by the
governor, and another judge by the county commissioners.
A constituti/onal provision required us to sustain the appoint
ment of the county commissioners. The legality of the gov
ernors appointment is again challenged in the present case,
and, were it necessary to consider and decide the point (hav
ing reference only to the constitutional provision considered in

the Rucker case), we should probably be able to sustain the
appointment of the governor in this instance.
The difference of result is owing to a difference in the lan
guage of the two acts, and illustrates their want of uniformity
in the mode of appointing the judges.
This difference of language characterizes every section of
the two acts, and would inevitably lead, in their practical en
forcement, to the most diverse results, where results should be
the same.
The constitutional provision requiring that all laws relat
ing to courts shall be of general and uniform operation is
of the rst importance; and while we are fully sensible of the
temporary hardship which its enforcement in these two cases
entails, we feel certain that it is insignicantin comparison with
APRIL TERM, 1881.
525
In re Roberts.
the confusion, conflict and uncertainty which the two acts, if sus
tained, would inaugurate.
The prayer of the petitioner must be granted.
IN RE T. H. RoBERTs.
1. The printed statutes published by authority, and the enrolled bills duly
authenticated and on file with the proper custodian, are prima facie evi
dence of what the law is, but not conclusive.
2. Whenever a question arises of the existence of a statute, or of its

precise terms, or its constitutional enactment, the court may resort to the leg
islative journals as proper sources of information as evidence, the value of
which the court is to determine.
3. The requirement of Sec. 26, of the constitution of the State of Colora

do, that the fact of the signing of a bill by the presiding officer in the pres
ence of the house over which he presides shall be entered on the journal,
is directory, and in the silence of the journal it is to be presumed that the

bill was so signed.
PETITION for habeas corpus.

Mr. C. S. THOMAs, for petitioner.
Mr. CLINTON REED and Mr. J. W. J.ENKINs, for respondent.

STONE, J. The petitioner Roberts avers in substance, that
he is held in custody by the sheriff of Lake county, by virtue
of a warrant of commitment issued by the judge of the dis
trict court of the said county of Lake, upon a criminal charge;
that he is unlawfully deprived of his liberty, for the reason, as
alleged, that the judge of said court was without lawful author
ity to act in the premises, in that the act of the General Assem
bly increasing the number of judicial districts in the State,
and establishing the court aforesaid, entitled An act to estab
lish judicial districts in the State of Colorado, and to provide
526

In re Roberts.
for the holding of district courts therein, and the manner of
commencing and adjourning the same, and return of process
and providing for the transfer of causes therein, and for con
tinuing causes in case of adjournment, and to repeal all other
acts in relation thereto, approved March 5, 1881, was not

passed in accordance with certain requirements of the consti
tution, and hence, that said act is invalid and without force to
confer any lawful authority whatever upon the said judge to

commit the petitioner.
The specic grounds alleged against the validity of the act

in question are:
First. That the bill for said act having originated in the
house, and having passed that body, was amended in several
respects by the senate; that the bill, together with the amend
ments, was returned to the house for its concurrence, and that
such of said amendments as were concurred in, were not
adopted by the house in conformity with the requirements of
section 23, article Vof the Constitution, in that a vote was not
taken by the ayes and noes of the members voting thereon,

nor were the names of those voting recorded in the journals
of the house, except as appears by the journals, etc., the
point of objection being that the journal records are so defect
ive that they fail to disclose the fact with required certainty.
Second. That the fact of the signing of said bill by the
speaker, in the presence of the house, after its nal passage,
was not entered upon the journal of the house, as required by
section 26 of article V of the Constitution.
The provisions of the constitution referred to are as follows:
Art. V, sec. 23. No amendment to any bill by one house
shall be concurred in by the other, nor shall the report of any
committee of conference be adopted in either house, except by
a vote of a majority of the members elected thereto, taken by

the ayes, noes, and the names of those voting recorded upon
the journal thereof.

Sec. 26.
The presiding ofcer of each house shall, in the
presence of the house over which he presides, sign all bills and
APRIL TERM, 1881.
/.
._.'| l\'.1 \]
In re Roberts.
joint resolutions passed by the General Assembly, after their

titles shall have been publicly read, immediately before sign
ing; and the fact of signing shall be entered on the journal.
Several questions are involved in the consideration of this
case.
A question of fact is: Was the act in question passed in
compliance with the constitutional provisions above quoted?
The questions of law are: First. May the court go back of the enrolled act, duly
authenticated by the signatures of the presiding oicers of the
two houses and the governor, and led with the Secretary of
State, and examine the legislative journals, as sources of in
formation touching the regularity of its enactment, for the

purpose of determining its validity as a statute?
Second. If the journal may be looked into, must the regu
larity of the enactment appear therefrom airmatively, or may
it be to any extent presumed?
'
Third. In case of non-compliance with these constitutional

requirements or directions, is the act valid? And hence,
Fourth.
Are these constitutional provisions mandatory, or
directory merely '3

The rst of the legal questions propounded, is a much
mooted one, and of which it may be said, there is highly re
spectable authority on both sides. Although considering the
importance of the case, in view of the public interests involved,
we have made a laborious research of all the accessible author

ities, aided by the briefs of learned counsel in the case, I do
not deem it necessary to enter upon a lengthy discussion of
the question, or to review the authorities covering it, but will
merely cite the leading cases upon both sides, with such brief
statement as will serve to present a sort of balance sheet of the
authorities.
The English doctrine is that it is not competent to go beyond
the parliament roll, which is itself considered a record of as
great dignity as a record of court, importing verity, and
* the enrolled act is to be determined by itself, whether it be a

statute or not.
528
SUPREME Conan? OF COLORADO.

In re Roberts.
In this country the question, in some form, has been passed

upon by the highest courts of twenty-two States, and in over
fty cases.
_
As they now stand, nine States may be classed as adhering to
the English doctrine, to wit: Connecticut, New York, New

Jersey, Mississippi, Louisiana, Indiana, Iowa, California and
Nevada. The leading cases in support of the doctrine in those
states are: Eld v. Gar/ram. 20 Conn. 8; People v. Devlin, 33
N. Y. 269; Pwngbom v. Young, 32 N. J. 29; Green v. Wel

ler, 32 Miss. 650; La. State Lottery v. Ric/tonw, 23 La.
Ann. 743 (8 Am. Reports 602); Evans v. Brown, 30 Ind.

514; Duncomle v. Pr-in/lle, 12 Iowa, 1; Sherman v. Story,
30 Cal. 258; State v. Swift, 10 Nevada, 176; (21 Am. Rep.
721)
The States whose courts hold to the contrary, and to what
may be called the American doctrine, are th_e thirteen follow
ing: New Hampshire, Vermont, Maryland, West Virginia,
South Carolina, Alabama, Arkansas, Pennsylvania, Ohio, Illi
nois, Michigan, Minnesota and Missouri.
The leading cases
announcing such decisions, are: Opinion of the Judges, 52 N.

H. 622; In re Wellman, 20 Vermont, 656; Legg et al. v.
The Jllayor, etc., 42 Md. 203; Osbourne et al. v. Staley et
al. 5 W. Va. 85; State v. Platt, 2 S. C. 150 (16 Am. Rep.
647); Moody v. State, 48 Ala. 115 (17 Am. Rep. 28);

Wort/ten v. Badgett, 32 Ark. 496; Sout/zwarl: Bank v. Com/t/2,
,26 Pa. St. 446; Fordyce v. Godman, 20 O. St. 1; People v.

Sterne, 35 Ill. 121; People v. Mahaney, 13 Mich. 481; Su
pervisors v. Keenan, 2 Minn. 331; State v. Jlleatl, 71 Mo. 266.
In addition to these last-cited cases, and in support of the

same general doctrine, is the case of Gardner v. The Collector,
etc., in the Supreme Court of the United States, 6 Wall. 499,
and also the following text writers; Cooley Con. Lim., 135-9;
Sedgwick Stat. and Const. Law (2d Ed.), 55; Smiths Con. Lim.
Secs. 833-8; Cusl1ings Legislative Assemblies, Sec. 2,211 et
seq.; 1 Greenleaf Ev. Sec. 491.
This last author lays down the rule that the journals of
either house are the proper evidence of the action of that
APRIL TERM, 1881.
529
ln re Roberts.
house upon all matters before it. The Vermont and Pennsyl
vania cases cited above, go no further than this upon the
questions considered, and even the New York case of the Peo
ple v. Devlin, supra, admits the correctness of this rule.
In
deed it may be observed that the English rule allows the jour
nals of parliament to be admissible evidence for all purposes
for which they are there considered to be kept, though not for
the purpose of impeaching an enrolled act.
And it is to be
remarked that the circumstance of the absence of a written

constitution in England requiring legislative journals to be
kept, none whatever being kept in the House of Commons un
til the time of Edward VI, while in most of the States of the
Union the constitutions require journals of the proceedings,
and point out what they shall contain, will account for much
of the diversity of opinion by the courts of this country.
It is also notable, that owing to changes made in the funda

mental law by the adoption of new constitutions, the courts of
several States have overruled themselves upon this question.
The decision in 33 N.Y. supra, is in conict with what seems

to have been the rnling"in the earlier cases. The cases in 30
Ind. and 30 Cal. overruled the early decisions in those States.
On the other hand, while, until recently, the case of the Pac.
R. R.v. The Gov. 23 Mo. 353, has been regarded as one of the
leading cases in support of the English doctrine, a change in

the constitution of that State in 1865, necessitated the court,
in the case of State v. 1llead,aupra (1879), to announce the
contrary doctrine.
So also the case of Fou/ce v. Fle-ming, 13
Md. 392, is overruled by the cases Berry v. Drum, Pt. R. R.
41 Md. 440, and that of Legg v. Mayor, 42 Md. cited, supra.

In view of these authorities, and of the precise language
and reasonable import of our own constitution we must hold:
First. That the enrolled act of the General Assembly, duly
signed and authenticated by the proper oicers, and lodged
with the proper custodian, is- evidence prima facie of what
the law is, and of the regularity of its constitutional enactment,
But this evidence is not conclusive. To so hold would leave the
34
530
SUPREME CoUR'r or CoLor..u)o.

In re Roberts.
constitutional requirements touching the mode of passing bills.

binding only in conscience upon members of the legislature.
The statute making the printed copy of the laws evidence, does
not make it conclusive.
Second. The legislative journals are required by the con
stitution, and for an obvious purpose certain things are re

quired to be entered therein. They possess the character of
public records, and as such are admissible as evidence of the
proceedings of legislative bodies, and this independently of
statutory provisions. Their value as evidence, however, is a
question for the courts, and will be affected by the internal
evidence which such records furnish as to the system and coin
pleteness, or carelessness and slovenliness with which they have
been kept.
Next, as to the question of fact:
What do the journals
show in the particulars complained of by the petitioner?

Before proceeding to speak of their contents, it is in place
to observe that ihese so-called journals are not strictly journals,
but memoranda for journals. They are the original sheets of
the clerk, upon which minutes or memoranda of the daily
proceedings of the body are set down in the order of their oc
currence, partly in ink and partly in pencil, and in which are
pasted the partly printed and partly written reports, messages,
and voting lists or roll-calls of the houses, and with many ab
breviations of words, phrases and recitals. From these mem~
oranda the journals proper are to be written out completely
and historically. To do this well, as it should be, and as con
templated by the constitntion directing it, would be practically
impossible during the hours of work and confusion of legisla
tive proceedings. But after the days adjournment, the jour
nals should be written up in proper shape, so that, if necessa
ry, they could be read each morning for correction and approval
under the eye of the presiding oicer and the whole house,
thus tting them at once, and when "it can best be done, for
publication, and as public records in the State archives. In so
important a matter as the constitutional requirement of keep
APRIL TERM, 1881.
531
In re Roberts.
ing journals of the General Assembly, it is earnestly to be hoped

that more careful attention will be given in future legislative
proceedings.
By inspection of these original journals of the house clerk,

which we nd lodged with the proper custodian of the law,
and must treat as journals of the proceedings they record,
however imperfect, it appears that the bill under consideration,

which is designated as H. B. 183, passed the house and
went to the senate, where it was passed with seven amendments,
and with them was returned to the house for action upon the
amendments. The house non-concurred in three of the amend
ments, and next following thereafter is the following entry:
Mr. Rowen moved that the remaining amendments be con
curred in. Hereupon the record fails to recite in totidem

verbis, what action was had upon the motion, but there imme
diately follows, pasted upon the sheet, a printed list of the
names of the members of the house, in alphabetical order, with
the word ayes and noes printed on opposite sides of the
names, and headed house roll-call, over which is written
O. C. 183. On the side of the ayes are written 'gures'op

posite certain of the names, numbered from the top down the
list to the number of thirty, and on the opposite, or noes side,
the number one only, appears opposite a name. The total
number of names printed on the list, including the speaker, is
forty-nine.
Afterwards, in the minutes, appears a message from the sen
ate, announcing that that body had receded from part of its
amendments not concurred in, insisting upon the others,
and asking for a committee of conference upon the matter.
The house, as appears, appointed such a committee, which,
after a conference with a like senate committee,reported recom
mending that the house do concur in those amendments in
sisted upon by the senate. This report was objected to by cer
tain members, and the matter was re-committed.
Thereafter the committee submitted what is termed a fur
ther report, recommending the adoption of,or concurrence in,
532
SUPREME COURT or CoLon.u)o.

In re Roberts.
the amendment under consideration, with some modication.
Thereupon, as the record recites, Mr. Homer moved to adopt

"
the supplemental report.

Here again the record is silent as to what was done npon
the motion, save that another legislative roll-call is pasted
on the page, headed " Adopt. Rep. C. Com. The names of
members on this list marked on the side of the ayes are twenty
eight,and the noes three.

Then follows this entry: The question being upon the adop
tion of the report relative to senate amendments referring to
terms of court in Clear Creek county.
Then comes another roll-call, headed Clear Creek, with
the names marked under the ayes numbering twenty-nine,
noes, none.
Afterward, on motion of Mr. Garcia, the house
refused to concur in the senate amendments, relating to the

terms of court in Conejos county; and subsequently appears a
message from the senate, announcing that it had receded from
said amendment affecting the county of Conejos. Then the
house committee on enrollment, reports the bill correctly en
rolled, and thereafter the joint committee on enrollment, rc
port as follows: Mr. Speaker, the joint committee on en
rollment, have examined house bills Nos. 183, 161, 219; 161,
legislative apportionment; 219, appropriation; 183, judicial
apportionment, and nds the same correctly enrolled.
Charles
P. Bryan, chairman on part of house.

Then immediately follows this entry: At 7:30 I.1\I. the
speaker, in presence of the house, signed.
This is all of the record relating to the bill in question that
is pertinent to our examination.
Now, let us go back to the rst objection made by petitioner,

that the senate amendments were not adopted by the ayes
and noes of the members of the house, nor were the names of
those voting recorded upon the journal thereof.

ti True, there is no such plain recital in form as is expected
and required, not in terms by the constitution, but by com
mon sense interpretation, in a complete narration of the pro
ceedings.
"Aran. TERM, 1881.
533
In re Roberts.
And we may admit that Sec. 23 of Art. V of the Constitution

is mandatory, in so far as it requires the vote to be taken by
the ayes and noes. There is_ an express prohibition of the en

actment of a law in any other mode than the one pointed out,
and hence a compliance therewith is a condition precedent to
the validity of a legislative act coming within the provisions of

the section.
But to any one at all familiar with the mode of legislative

proceedings, and the customary manner in which minutes for
making up the journals are kept by the clerks during the

hours of business. there is no great difficulty in deriving the
proper meaning from the records or journal memoranda here
presented. These printed forms of roll-call are in common,

and probably universal use in legislative bodies, for the pur
pose of taking and recording the result of a vote, and their

use may be regarded as necessary in this age, to facilitate and
accomplish the large amount of business to be transacted with
in the limited sitting of the legislature. So of the other
printed forms for reports of committees, etc., and the abbrevia
tions of well known signication. For example: House bills
are designated in the authorized printed forms for use in the
proceedings, and even in the published journals, by the initial
letters, H. 13.; senate bills as S. 13.; house resolutions as H. R.,
and so on; and of these authorized abbreviations we may take
judicial notice. The meaning of numerous other signs and
abbreviations made by the clerks for convenience in keeping
up with the current of proceedings, the court may not judicially
know, but to an intelligent mind, their meaning can be readily
discovered, where they are employed in direct connection with
the subject matter to which they evidently refer.
Following the letters indicating bills, are placed the gures

numbering them, in the order of their introduction in the
house.
In the instance before us, the motion was to concur in
certain amendments. This was required to be done by the

ayes and noes, and the names of the members voting were to
be recorded.
Immediately following the statement of the mo
534

In re Roberts.
tion comes the printed roll-call, which is headed by the letters

and figures, C. C. 183.
Now, when it is known from the previous recital of the mo
tion itself that the action next to be taken was to concur in the
amendments to house bill No. 183, this collocation of the sub
ject matter serves to interpret the abbreviations, so that they

can be apprehended with a fair degree of certainty, to imply
that the roll-call list of members marked under the headings
ayes and noes, is the recorded result of a vote to concur

in the amendments to house bill No. 183.
For like reasons,
we may rationally interpret the roll-call headed Adopt. Rep.

C. Com. to mean the vote taken upon the adoption of the
report of the conference committee, and, in both these in
stances, it is equally inferable that a majority voted aye, and
the members voting aye and no, are readily determinable by
the numbers opposite their names.
In the case of the Board of Supervisors v. Heenan, which
we have already cited, the court say: When journals are
kept as loosely as these seem to be, the court will endeavor to
sustain a law, if its constitutional passage can be spelled out
of them. In this connection it is to be noted, that if we
should admit these records to be so untranslatable as to be
deemed altogether silent upon the fact in controversy, yet the

objection of petitioner rests upon merely negative evidence
that is to say, the most that can be contended is, that while
the records do not show affirmatively an obedience to the con
stitutional command, neither do they affirmatively show a dis.

obedience. In such cases I think we may safely apply the
doctrine of the maxim, Omnia prasum untur rite esse acta.
If the records are silent touching the compliance with the
constitutional requirement, there is a presumption of right ac
tion in favor of a body acting under oath to support the Con
stitution.
State v. Mead, 71 Mo. 266; Miller & Gibson v.
State, 3 Ohio St. 475; Worth&n v. Badgett, 33 Ark. 496;

Cooley Con. Lim. 135.
In this case, then, aided by such legal presumption, I think
APRIL TERM, 1881.
535
In re Roberts.
sufficient appears to satisfy the judicial mind that the ayes and
noes were taken and recorded as required.
In respect to the other objection, that it does not appear by

the record that the bill was signed by the speaker in the pres
ence of the house, we must hold that Sec. 26, of Art. W, of
the Constitution, is directory merely, in so far as it relates to
the requirement that the fact of signing shall be entered upon

the journal.
The language is altogether different from that in Sec. 23, in
that such entry on the journal is not made a condition of the
validity of the act by words of prohibition. This view is
amply sustained by authority. Besides, we think, aided by
the context, it may, perhaps, be fairly inferred that the record
of the signing by the speaker in the presence of the house,
though not in express terms, yet by not unreasonable inference,
refers to the bills specified in the report immediately preced
-
ing.
To summarize the foregoing opinion, the court holds:

First. That the printed statutes published by authority, and
the enrolled bills duly authenticated and on file with the proper
custodian, are prima facie evidence of what the law is, but not
conclusive.
Second. That whenever a question arises of the existence

of a statute, or of its precise terms, or its constitutional enact
ment, the court may resort to the legislative journals as proper
sources of information as evidence, the value of which the
court is to determine.
Third. That in this case, although some of the constitu

tional provisions governing the mode of enactment are man
datory, sufficient appears in the legislative records to show a sub
stantial compliance with their requirements.
Fourth. The requirement of Sec. 26, that the fact of the sign
ing of a bill by the presiding officer in the presence of the

house over which he presides shall be entered on the journal,
is directory, and, in the silepce of the journal, it will be pre
sumed that the bill was so signed. The writ is accordingly
refused.
Writ refused.
536
SUPREME Conrrr or COLORADO.

Epley et al. v. Scherer.
EPLEY ET AL. V. SCHERER.

A material man to maintain a. mechanic's lien under the statute (Gen.
Laws, p. 595, Sec. 1669), must aver and prove that at the time of the noti re
served upon the owner, of intention to claim a lien, that a payment was due
or to become due from the owner to the contractor.
Error to Circ'uit Court QfArapah0e County.

THE complaint in this case alleged:
That said Jacob Scherer on, to wit, the second day of Jan
uary, A. D. 1880, was the owner of lots numbered (15) fteen
and (16) sixteen, in block numbered (64) sixty-four, in the east
division of the city of Denver, in the county of Arapahoe afore

said, and thence hitherto hath been and now is the owner of
said lots.
That one Valentine Harding, on or about the second day of

January, A. D. 1880, was, at the special instance and request
of said Jacob Scherer, engaged in the erection and construction

of a building upon the lots above described as a contractor.
That at the special instance and request of the said Valen
tine Harding, as such eontractor, the plainti's furnished to
the said Valentine Harding a large amount of material to be

used in and about the erection and construction of said build
ing, to wit: Seventy-ve thousand bricks, of the value of
seven hundred and fty dollars. and which said material was
used in and about the erection and construction of said build
1n<r.
?1hat said material was furnished as aforesaid by the author
ity and with the knowledge and consent of the said Jacob
Scherer, he, the said Jacob Scherer, then and there being the
owner of the lots hereinbefore described.
That the plaintiffs, on the fth day of March, A. D. 1880,
and within twenty days from the fumishing the last of said
material above mentioned, according to the form of the statute
in such case made and provided, prepared and led in the of
APRIL TERM, 1881.

537
.
ce of the county clerk and recorder of the county of Arapa

hoe aforesaid, their statement, containing a notice of their iu
tention to hold and claim a lien, together with a description
of the premises to be charged thereunder, as well also an ab

stract of the indebtedness claimed by the plaintiffs to be due;
and afterwards, and within ten days from the ling of such
statement as aforesaid, the plaintiffs, according to the form of
the statute in such case made and provided, served a copy (if
said notice in writing upon the said Jacob Scherer by deliver

ing the same to him personally.
That there is now due and owing to the plaintiffs by and on
account of the material furnished as aforesaid, after allowing
all just credits, the sum of ve hundred and fty dollars.

That said Jacob Scherer has failed to pay the same, or any
part thereof, although often requested so to do.
Wherefore, the plaintiffs pray that your Honor will grant
them alien upon the premises above described, according to

\
the form of the statute in such case made and provided, and that
a writ of summons may issue out of and under the seal of this
honorable Court, directed to the sheriff of Arapahoe county,
therein commanding the said Jacob Scherer to be and appear

before this honorable Court on a day therein to be named, and
to answer the premises and to abide such order herein as to

your Honor may seem meet.
To this complaint a demurrer was sustained as stated in the

opinion.
The petitioners elected to stand by their complaint,
and judgment was entered on the demurrer in favor of the

defendant. To reverse that judgment this writ of error is
prosecuted.
In this court it was contended by plaintiffs in error that it
is not necessary to state in pleading, matter which should more
properly come from the other side; that the remedy was stat
utory; that the rst section of the act gave the remedy, and
the exception contended for by defendant occurred in a subse
quent section, and hence, under the rules of pleading, was
matter of defense.
538

Messrs. FRANCE & RogERs, for plaintiffs in error.

Mr. W. B. MILLs, for defendant in error.
Error to County Court of Arapahoe County.

STONE, J. Action in the court below was brought by plain
tiff in error against the defendant in error, to enforce a me
chanic's lien upon the premises of the defendant for building

materials furnished by plaintiffs to sub-contractors.
The complaint was demurred to as not stating facts sufficient
to show a cause of action.
The demurrer was sustained by the
county court. The plaintiffs elected to stand by their com

plaint, and assign here for error the judgment of the court
upon sustaining the demurrer.
Section 6 of the act of 1876, amendatory of the mechanic's
lien law, is as follows:
Nothing in this act, nor in the act to which this is amenda

tory, shall be so construed as to give alien or liens to any sub
contractor, journeyman, laborer or other person, which singly
exceeds, or in the aggregate exceeds the amount due or to be
come due to the contractor from the owner of the property
upon the contract between them, for the work of such contract
upon such property. General Laws, p. 595, Sec. 1669.
The ground of the demurrer is that the complaint fails to
aver that at the time of notice of lien, or at any time, there
was any amount due or to become due from the owner of the
property to the contractor, upon the contract between them;
and it is contended by counsel for defendant, that such indebt
edness should appear in the complaint as a material averment
going to the cause of action.
Since no authorities were cited by counsel in the case, save
the most general rules of common law pleading, we have been
at some pains to find authorities ruling upon the precise ques
tion.
Mr. Phillips, in his work on Mechanic's Liens, Sec. 405,

states the doctrine that the plaintiffs sub-contractor is not
APRIL TERM, 1881.
539
bound to aver negatively that the owner, at the time he re

ceived notice of the plainti"s claim, had not paid the con
tractor the full amount of the contract price, and cites as au
thority the cases of Doughty v. Devlin, 1 E. D. Smith (N. Y.)

625, and Bailey v. Johnson, 1 Daley, (N. Y.) 61.
The rst of these cases lays down the rule as stated by Mr,
Phillips, but the other case holds directly the contrary. It
will be found upon investigation that the case of Doughty v.
Devlin is the rst reported case of a large number of cases
decided under the New York lien law of 1851, and the court
in that case expresses some doubt as to the proper interpreta

tiou of some portion of the then new statute. At a subse
quent term of the same court, in the case of Sullivan v.
Brewster, 1 E. D. Smith, 681, it is held that a sub-contractor,
equally with the original contractor must, to entitle him to
recover, show that a payment has become due from the owner
upon the contract. The court in that case say: The opera
tion of the lien law is to transfer to the sub-contractor so
much of the contractors claim against the owner as would be
suicient to pay the debt of the contractor to his sub-contractor.

It would be but reasonable to require the same amount of
proof to recover against the owner for the same debt whether
the suit is brought by one or the other claimant. It is said
that this would be requiring the plaintiff to prove a negative.

This is not so.
It is an airmative proposition that there was
a contract, and also that a payment has become due upon it.
Following this case, the court adhered to the same rule in
numerous cases to be found in 2d, 3d and 4th E. D. Smith,
and later on in the case of Bailey v. Johnson, 1 Daly, 61, (re
ferred to supra), the court say: To determine as to their cor

rectness (the rulings of the court below) it will be necessary to
see what facts are required to be alleged and proved in an ae
tion brought by a sub-contractor, to enforce alien under the
law of 1851, referred to in this complaint. The numerous de
cisions which this court has made in respect to this law, show
that to establish a lien under it by a sub-contractor, there must
appear:
5-10
Surname Comm or Conoaano.

lst. That labor or materials have been furnished in the

erection of the building, in conformity with the contract made
by the original contractor with the owner.
2d. That within * * " thereafter, a notice in writing
* * * claiming alien for the work or materials thus fur

nished, has been led with the county clerk.
3d. That at the time of ling the notice of lien, or subse
quently, a payment was due, or has since become due from the
owner to the contractor, npon the original contract.
4th. That the contracting owner had some interest in the
property at the time the notice claiming the lien was led. And
in support of the holding as to these requisites of the com
plaint and proof the numerous previous decisions are cited.
The New York statute of 1851, under which these decisions
were made, differs but little, if any, in substance, from the
provision in our law under which the case at bar arises.

4, Ab. N. Y. Dig. Tit. Mech. Lien. Sec. 45.
Sec.
The same rule is substantially laid down in Illinois and in
California. Thomas v. lnrlzzstrial Universitj/, 71 Ill. 310;

Henley v. Wadsworth, 38 Cal. 356.
,
This rule is stated by Mr. Phillips in section 63 of his work
above referred to, with authority cited, though in section 405,
where he states the rule laid down in Doughty v. Devlin, no

allusion is made to the conict between that single case and
the subsequent decisions. Our own court has inferentially
held to the same rule in the case of Jensen et al. v. Brown, 2
Col. 694, where, althou_<_>;h this precise question was not raised,
the court, per Brazee, J., say: The petition does not allege,
the evidence does not show, nor does the referee nd that any
thing was due from the owner to the original contractor at the
time of service of notice of claim of lien.
Regarding this rule as correct upon principle and the au
thorities cited, we reach the conclusion that the demurrer was
rightly sustained.
Judgment A_1-med.
541
Fisher v. Greene.
FISHER v. GREENE.
1. Equity will interfere to restrain an adverse party from availing him
self of a judgment where there are any facts which prove it to be against
conscience to execute such judgment, and of which the injured party could
not have availed himself in a court of law, or of which he might have availed
himself at law but was prevented by fraud or accident unmixed with any
fault or negligence in himself or agents.
2. Where the facts upon which relief is claimed existed before the trial at
law, and were known to the party asking the relief, or might have been dis
covered by the exercise of ordinary diligence, and was as much a defense at
law as in equity, no redress can ordinarily be obtained in equity.
3.
A want of diligence that would forbid a continuance of the cause, would
forbid disturbing the judgment.

Greene, the defendant in error, commenced his action in the
district court, founded upon a judgment obtained in the Su
perior Court of Cook county, in the State of Illinois. The

plaintiff in error filed his answer and cross-complaint as fol
lows :
For a defense and cross-complaint, the said defendant
alleges and shows to the court that the said plaintiff, on or

about the 19th day of May, A. D. 1877, commenced a suit in
assumpsit against this defendant in the Superior Court of Cook

county, in the State of Illinois, and upon the same day, while
this defendant was temporarily in the city of Chicago, in said
Cook county aforesaid, upon his way to the State of California,
he was served with process of summons commanding him to
appear and answer in said suit.

That at the time of service of said process of summons as
aforesaid, this defendant was entirely ignorant of any cause
existing for said action, or upon what demand the same could
be founded.
That he immediately demanded of the attorney of said
Greene, who was then present with the officer who served said
542
Scream: Comm on COLORADO.

Fisher v. Greene.
process, to know upon what demand or claim said action was

founded, and was then informed by said attorney that said suit
was based upon four certain promissory notes, executed in the
city of New York in the year A. D. 1866, in the name of this

defendant, by one W. F. Heycr, claiming at the time to act as
the attorney in fact of this defendant in said city of New York,
and that said notes had been assigned to said plaintiff, Greene,
by George D. Bayaud, the payee named in said notes, copies
of which said notes are hereto attached, marked exhibits A,
B, O and D, and are hereby made a part of this an
swer and crosscomplaint.
And this defendant further alleges and shows to the court,

that he was even then at a. loss to understand the grounds of
such action, because at the time said notes bore date, the said
George D. Bayaud, the payee in said notes named, was in fact

the debtor of this defendant to a large amount.
That at the time, to wit, A. D. 1866, this defendant was the
special partner to the amount of twenty thousand dollars of
said Bayaud, and since that time had received back only a
very small amount of that sum.
That at the time it is claimed said notes were executed, this
defendant was residing in England, and by reason of the fact
that eleven years had elapsed since the date of the execution
of said notes and the institution of said suit, he had never re
ceived any report of the existence of said notes of reference to
the same. either from the said Heyer or Bayaud, and was in
fact totally ignorant of the existence of said notes, never hav
ing seen or heard of them before they were presented to him

in Chicago at the service of said process upon him as afore
said.
And this defendant further alleges and shows, that during

the time he was a special partner of the said Bayaud, and pre
vious to his leaving New York for England, he had been ac
customed from time to time, for the accommodation of the
said Bayaud, to execute and deliver to said Bayaud his notes

for various and large amounts, to be used by said Bayaud in
Dncsiunsn TERM, 1881.
543
Fisher v. Greene.
the prosecution of his own business, and the same were pro
tected and paid by the said Bayaud when they became due and
payable, this defendant having no interest whatever in the
same and not having executed the same for any valuable con
sideration, but solely for the use and accommodation of said
Bayaud; and this defendant avers that if said four notes had
been issued by the said Heyer, then the agent of this defend
ant in the prosecution of his business, the said Heyer would

have made report and explanation of the same to this defend
ant; but this defendant says in fact that said Heyer never did
report or inform him of the execution or existence of said
notes.

that said notes were executed and issued, if executed and issued
at all, by the said Heyer, without any authority whatever from

this defendant, and beyond and outside of the power and au
thority conferred upon him by this defendant; and this defend

ant alleges and charges, upon information and belief, that the
said Heyer, well knowing the intimate business relations which

had existed between this defendant and the said Bayaud, and
knowing also that this defendant had before that time been ac
customed to issue his notes for the accommodation of said
Bayaud, as before stated, upon the urgent solicitations and
false and fraudulent representations and assurances of the said
Bayaud, that this defendant would not object, and that the said
Bayaud would protect this defendant in the premises, the said
Heyer did execute the said four notes in this defendants name
and deliver the same to said Bayaud v\'ithout value or consid
eration, and solely for said Bayauds accommodation, although
both the said Heyer and Bayaud well knew at the time that no
such power to execute and issue said notes for such a purpose
was conferred upon said Heyer by this defendant.

that at the time of the service of said process of summons upon
him, as before stated, he was further nimble to comprehend the
causes which led to the bringing of said suit in said county of
544

Fisher v. Greene.
Cook, State of Illinois, and the object to be attained by the
parties, because none of the parties in any way interested in

said suit, or any of the witnesses, were residents of said county
or State of Illinois; that this defendant was then temporarily
in said county and State, and the said plaintiff, Greene, resided
in the city ot' Providence and State of Rhode Island, and the
said Bayaud and all the witnesses to this transaction in the
State of New York; that this defendant had been in the United
States several times since the execution and maturity of said
notes, and that, too, with the knowledge of the said Bayaud,
payee of said notes, and had many times during the year
A. D. 1868, seen and conversed with said Bayaud in rela
tion to his interest as such special partner, and said Bayaud
had assured this defendant that there would be further pa)"
meuts coming to him by reason of said partnership; that al
though the said Bayaud now claims that during all that time
the said four notes were in his possession, and were then un
paid, and that he had paid the money upon them at their ma
turity, and although this defendant was then able to pay said
notes if valid, which fact was so known to the said Bayaud,
nevertheless this defendant avers and charges the fact to be
true, that said Bayand never, in or at any of their interviews
in the years A. D. 1868 and 1869, or at any other time, ever
informed this defendant of the existence of said notes or that
he was possessed of the same, nor ever demanded payment

thereof of this defendant.
And this defendant further avers, that although said Bayaud
now claims that said four notes passed into the hands of his
assignee in bankruptcy some time in the year 1870, neverthe
less this defendant avers that he never received from said
assignee any notice that he held said notes against this defend
ant, nor was he ever called upon by said assignee or said plain
tiff to pay said notes, although the residence of this defendant
was well known to said Bayaud and said Greene, and, as this de
fendant believes, was also well known to said assignee in bank
ruptcy; that the residence and address of this defendant at the
545
Fisher v. Greene.
time aforesaid was in London, England. and that such fact was
at all times well known to the said Bayaud at the time he so pos
sessed said notes, and was also well known to the said Greene.
who now claims that he purchased said four notes from the
said assignee in bankruptcy of said Bayaud at the sale of said
hankrupts effects some time in the years A. D. 1873 or 1874;

that the said Bayaud and the said Greene, at any of the times
aforesaid, could and should have taken some legal measures to
have collected the said notes, and could and should have com
menced such legal proceedings either in London or New York

for the collection of said notes; but this defendant avers that
neither the said Bayaud or the said Greene ever informed this
defendant of the existence of said notes, nor ever wrote to
this defendant concerning them or their payment, or took

any steps whatever to collect said notes by suit or otherwise,
although this defendants address and residence and move
ments to and fro from England to the United States, were
always well known to them, but negligently and fraudu
lently, for the purpose of injuring, cheating and defraud
ing this defendant, concealed the existence of said notes

from this defendant in the manner aforesaid from their date
and maturity for the space of about eleven years, and then
brought suit in said Superior Court of Cook county, in the
State of Illinois, a long way distant from the said residence of
this defendant and from the residence of the said. Bayaud and
Greene, and from all the witnesses, and evidence in the cause
was readily and easily procured with less expense ; and while
this defendant was temporarily in said city of Chicago, county
of Cook and State of Illinois, on his way to the State of Cali
fornia, with the fraudulent intent aud purpose, as this defend
ant believes and so charges the fact to be, to injure, harrass
and annoy this defendant, and in order to take advantage
of this
defendants
ignorance of the existence of said
notes and the circumstances under which said notes

were ' executed and put into circulation, and to compel
him to compromise and settle what the said Bayaud

35
5-16
SUPREME Comm" or Coronsno.

Fisher v. Greene.
an(l Greene knew to be an unjust claim, already barred by

lapse of time and the statutes of limitations in said State of
New York, well knowing that the said Heyer, who had exe
cuted said notes as the agent of this defendant, and who hail
acted theretofore as the agent of this defendant, as before
stated, and who knew all the facts and circumstances connected
with the execution and delivery of said notes, had long since,
to wit, sometime in the year A. D. 1868, died, and well know
ing that this defendant was at the time without the knowl
edge of evidence wherewith to successfully defend against
said action, and that all evidence regarding said notes, their
nature, use and existence, and the facts connected therewith,
was peculiarly within the knowledge of the said Bayaud, the
said Greene, and the said assignee of said Bayaud.

that at the time of the service of said process upon him, he

immediately employed an attorney to appear for him and de
fend said suit in said Superior Court of Cook county, but not
knowing at the time the evidence that could or would be pro
duced by said plainti' in said suit to substantiate his said
claim, and being ignorant of the facts and circumstances con
nected with the execution and possession of said notes by the
plaintiff and said Bayaud, he was unable to give his said attor
ney but scant information with reference to the same; that in
fact and in truth he was not at the time apprised of the facts
surrounding said transaction to enable him to give his said
attorney the facts, so as to make such defense to said suit as
in justice and right he could have done had not said facts
been purposely and fraudulently concealed from him by the
said Bayaud and the said Greene, and that all his said attor
ney could do at the time, from the information then in the
possession of this defendant was to le a plea of general issue,

with certain pleas denying the execution of said four notes;
that thereupon, issue being joined on said pleas, certain depo
sitions were taken on behalf of said plaintiff, including the

testimony of said Bayaud and said plaintiff, and certain other
547
Fisher v. Greene.
proceedings were had in said cause, resulting iii a judgment

against this defendant for the sum of $10,079.14 and costs of
suit, which is the same identical judgment sued upon in this

suit, and to which reference will be made more particularly
hereafter.

that shortly after said process was served upon him in said
suit, he continued his journey to California to attend to im
portant business matters, according to arrangements and plans
made before said suit was commenced, and which required his
immediate and personal attention, expecting and intending as
soon thereafter as possible to return to England by way of
New York for the purpose of collecting such evidence as he
could nd with reference to said four notes, and to examine his
books, papers and letters, all of which were in London, En

gland, with reference tohis said business transactions with said
Bayaud, and the letters and reports made to this defendant
by said Heyer, who, it was claimed, executed said four notes
in the name of this defendant, to enable this defendant to

give his testimony in said cause; that after reaching California
this defendant was taken sick, and was detained in California by
reason of severe illness for a long time, and was thereby prevented
and unable to return to England before late in the fall of the year
A. D. 1878; that it was absolutely necessary for this defendant
to examine his said books, letters and reports with reference to
said business trans-tctions with the said Biyaud, all of which
were in London, England, in order to give his testimony in
telligently in defense of said suit; that this defendant, upon
leaving for England in the fall of A. D. 1878, as before stated,
telegraphed to his said attorney in said suit to take such steps
as were necessary to take his deposition in London, England, to

be used on the trial in said suit; that his said attorney imme
diately thereafter, and on the 16th day of November, A. D.
1878, sued out of the oice of the clerk of said Superior Court
of Cook county aforesaid a do/livnns potestntum, or com

mission in said suit, directed to Joshua C. Munn, Esq., then
548
SUPREME Cover or COI.OR.\DO.

Fisher v. Greene.
Vice Consul pf the United States at London, England, to take

the deposition of this defendant to be used in said cause,
but by reason of the notice required by the statutes to the
plaintiff, said deposition could not be taken before the 15th day
of January, A. D. 1879; that the taking of said deposition was
begun on that day, but by reason of the engagements of said
commissioner the taking of the same was not concluded, but
was continued on the motion of said commissioner, and against
the wishes of this defendant, until the 18th day of February, A.
D. 1879. without the knowledge of this defendants attorney in
said suit at Chicago; that on said 18th day of February, A. D.
1879, said deposition was completed and returned to the clerk
of said court, where it was duly received and led in said court,
on the 4th day of March, A. D. 1879, but after said cause
had been tried and judgment therein entered against this
defendant, as hereinbefore stated, _and the term of said court
expired; that the delay in the taking of said deposition was

not occasioned by reason of any fault or negligence on the part
of this defendant, but solely by reason of the fact that other
business arrangements prevented said commissioner from
taking the same at an earlier day, and caused him to absolutely
decline to take said deposition before said 18th day of February,

A. D. 1879, as before stated.
that his said attorney, on the 3d day of February, A. D. 1879,
after due notice to the attorneys of the said plaintiff, applied
to said court in which said action was pending for leave t_o
le in said cause further additional pleas setting up the stat

ute of limitations, and that said action could not be brought
in said State of Illinois and had not been brought in said State
of New York within the time limited by the laws of said State
of New York, but that said court refused to allow said pleas to
be led, to which ruling exception was taken, copies of which
said pleas are hereto attached, marked exhibit E, and made
a part of this complaint.

Dncnzunnn TERM, 1881.
549
Fisher v. Greene.
that said suit was liable to be reached for trial on or about the
25th day of January, A. D. 1879, and before the said deposi
tion of this defendant could be returned into said court; that
thereupon the attorney of this defendant applied to the attor
ney of said Greene to continue said cause until said deposi
tion should be returned into said court, but he refused so todo
unless it was agreed that said suit should be tried before the
court withouta jury; that the attorney of this defendant was
compelled to so agree in order to have the benet of said depo
sition; that said cause was thereupon continued for a certain
space of time, and until the 19th day of February, A. D. 1879,
for the purpose of awaiting the return of said deposition; that

at the time of such continuance being made, the attorney of
this defendant was entirely ignorant of the fact that the com
missioner authorized to take said deposition in London had
already adjourned the taking of said deposition until a later
day than the one named in said commission, and that it would
be utterly impossible for said deposition to be taken and rc
turned in time to be used at said trial; that upon tho
calling up of said cause for trial on the 19th day of February, A.
D. 1879, application was made for a continuance to the court,
based upon an aidavit of the attorney of this defendant as
required by law, setting out the facts hereinbefore set forth,
and asking that said cause be continued so as to enable said
deposition to be returned and used in said trial, which appli

cation was refused by said court, and an exception taken to
the ruling of the court thereon; that said suit was thereppon,
on said 19th day of February, A. D. 1879, tried by said court,
without the said deposition of this defendant being so returned
in said suit, contrary to the objection of this defendant; that
by reason of the absence of this testimony of this defendant,
and without his fault or negligence, he was unable to present

his defense to the court in said cause, and judgment was, on
said day, rendered against him as aforesaid; that thereupon a

motion for a new trial was made by this defendant in said
cause, and overruled by said court; that proper exceptions_to
550
SUPREME Counr or Cononano.

Fisher v. Greene.
the rulings of said court as aforesaid, as well as to the rulings

of said court during said trial, were taken; that the -same
were duly incorporated in a bill of exceptions, signed and
sealed by the judge of said court, and said cause was there
upon removed by writ of error, to the appellate court of said
State of Illinois; that subsequently, and during the month of
October or November, A. D. 1879, said cause was heard in
said appellate court, and the said judgment airmed; that

thereupon said cause was regularly and duly removed, by writ
of error, as this defendant has been informed by his said at
torney, into the Supreme Court of said State of Illinois, where
the same is now pending and undetermined.
that on the 18th day of Febl-nary, A. D. 1879, and in London,

England, one day before the trial of said cause in said Superior
Court of said Cook county, as aforesaid, he casually met one
William H. Reynolds, with whom he had transacted business

in the United States at various times before the year A. D_
1866, in which it is claimed said four notes were executed, and,
knowing that said Reynolds was_ acquainted with both the said
Bayaud and the said Greene, he informed the said Reynolds
of the said suit then pending against him in said Superior
Court of said Cook county, as aforesaid, and of the claim there
in set forth upon said four notes, and the facts in so far as he
knew them; and thereupon, to the surprise of this defendant,
the said Reynolds informed him that during the year A. I).
1866, by reason of certain business transactions by which this
defendant was indebted to said Reynolds, he, the said Reynolds
knowing of the special partnership existing between this de
fendant and the said Bayand, and that said Bayaud was in
debted to this defendant, he, the said Reynolds had, during
the absence of this defendant in England, attached his inter
est .as such special partner of said B-ayaud, and that thereupon
the said Bayaud had made a full statement of all the affairs of
this defendant with said Bayaud, and after fully debiting this
defendant_ with everything chargeable to him, had paid to
551

Fisher v. Greene.
said Reynolds, on the 25th day of January, A. D. 1867, the

sum of five thousand dollars, this amount being all that was
due this defendant after allowing the said Bayaud all the
claims or effects which he had against this defendant, and
which were due and unpaid from him to said Bayaud; and said
sum was so paid by said Bayaud only after full satisfaction and
discharge of all debts and sums of money then owing him from
this defendant; and this defendant avers and states the fact to
be that the said facts so communicated to this defendant by

said Reynolds, with reference to said settlement, payment and
discharge of said four notes, are true, as this defendant believes,
and that he can prove the same by said Reynolds.
And this defendant further alleges and shows to the court
that in and by the testimony of the said Bayaud, as it was
given and appeared in said suit at law in said Superior Court
of Cook county aforesaid, at the time such settlement of the
affairs of this defendant was had by and between the said Rey
nolds and said Bayaud as aforesaid, to wit, on the 25th day of
January, A. D. 1867, the aforesaid four notes were then due
and payable and in the possession of the said Bayaud, and un
der his sole control, and whatever money was due thereon was
due and payable to said Bayaud; that the said Bayaud in his
testimony in said cause, claims that he so held, owned and
possessed said four notes, until they were delivered to his as

signee in bankruptcy, some time in the year A. D. 1870, and
that said notes passed into the hands of said Greene, who sued
upon them as aforesaid, by a sale by said assignee, some time
in the year A. D. 1873 or 1874. This defendant avers and
charges the fact to be, that said four notes were included in
said settlement above mentioned between said Reynolds and
said Bayaud, and that by reason of said settlement, so made as
aforesaid, said four notes were fully paid, satisfied and dis
charged, and this defendant thereby fully released and dis
charged from any and all liability or obligation existing or
arising thereunder.
-
And this defendant further avers upon information and be
552

Fisher v. Greene.
lief, and so charges the truth to be, that the said Greene, at the
time he so purchased said four notes from said assignee, and
before the bringing of said suit upon them, knew that said
notes were long past due, and was fully informed of said set
tiement, payment and discharge of said notes, and that by rea
son of such payment and discharge the said Greene ought not
to have recovered judgment thereon in said suit against this
# defendant.

that by reason of the fact that such settlement was had by an
other person than said Heyer, who, it was claimed, executed
said notes, and while this defendant was away from New York
and in England, he had no cause or reason to believe that
any one besides the said Heyer and Bayaud knew anything
about said notes, or that any transactions were had with Bay
aud which included these notes, and that he was not ac
quainted with the facts above set forth in regard to said settle
inent until informed thereof by said Reynolds on or about the
18th day of February, A. D. 1879, as aforesaid.
that during the pendency of said suit he made every effort in
his power to discover the truth regarding said four notes, and
to obtain evidence therefor on the trial, by making inquiries
wherever he had any reason to believe that he could obtain
even the slightest information on the subject; that he caused
diligent search to be made in New York for the books and
papers of the said Heyer, deceased, in the year A. D. 1868,
which related to his agency and the time said notes bore date,
but was unable to discover any books and papers, or to gain
any information relative thereto, from any of the surviving

members of the family of said Heyer, or from any one else;
that this defendant was compelled to examine the said plain
tiff Greene, in order to try and discover the truth with respect
thereto; that his attorney cross-examined the plaintiff's wit
nesses exhaustively for that purpose, but without success, for
the reason that such payment and settlement was then un
known to this defendant or to his attorney.
IDECEMBER TERM, 1881.
553
Fisher v. Greene.
that upon receiving such information from said Reynolds he at

once applied to said commissioner, named to take the deposi
tion of this defendant, to also take the deposition of the said
W. H. Reynolds at the same time, to be used in said suit, but
the said commissioner refused so to do because the name of
said Reynolds did not appear as a witness in the commission

so sent to him; that this defendant then procured from said
Reynolds a copy of the account as it existed in 1867 between
this defendant and said Reynolds, and showing the receipt of
five thousand dollars from said Bayaud on the 25th day of
January, 1867, and attached the same to his said deposition

taken in said cause; that this defendant also immediately
wrote to his said attorney, stating to him this newly discovered
evidence, and requesting that the testimony of said Reynolds
be taken in London, England, as soon as possible; that he then
believed that such deposition might be taken in time to be used
on the trial of said cause, and not then knowing that said
cause was to be tried upon said 19th day of February, 1879
upon information and belief, and so charges the fact to be true,
that his said attorney in said cause did not receive notice of
such newly discovered evidence until about the 10th of March,
A. D. 1879, and not until said suit had been tried and judgment
entered in said cause, and the term of said court at which judg
ment was rendered had passed and ended; that said evidence
was unknown to this defendant until the day before said cause
was in fact tried, and it was first made known to this defendant
by said Reynolds in London, England, as before stated, at a point

over three thousand miles distant from the place of said trial,
and therefore that such evidence could not possibly be made
use of on said trial, and could not be stated as a ground for a
motion for a new trial because unknown at the time, and
that it could not legally be brought to the attention of said

court so as to enable the court to take action thereon, or to
grant a new trial thereon, by reason of the practice of said
-1,:-)4

Fisher v. Greene.
court and the strict rules of common law, which do not allow
the granting of new trials after the term of court at which said
trial was had and udgment rendered has ended.

that he exhausted all reasonable means and efforts to discover
some evidence of payment, settleme it or discharge oi said notes
before the trial of said suit aforesaid; that such evidence of the
payment and discharge of the said four notes as aforesaid
would, if it could have been presented upon the trial of said
suit, have produced a different result, and no judgment would

have been rendered against this defendant. And the said de
fendant avers that said judgment now existing in said suit is
manifestly wrong and unjust, and if permitted to stand and
remain in full force and effect, will compel this defendant to
pay a claim which he does not owe, and which, if it ever existed,
has already been once paid, satised and fully discharged.

that he could not have established the fact of such settlement,
payment and discharge of said notes by evidence in due sea
son to present it upon the trial of said cause at law, because
he was ignorant of such a defense to the action and the proof
thereof pending the said suit, without any fault or negligence
upon his part, and that such ignorance could not have been
avoided or controlled bx diligence upon his part; that he was
prompt and diligent in all matters relative to his defense to
said suit, and made every endeavor to obtain evidence therefor,
and was not guilty of laches, and in no way attempted or
asked for delay in the proceedings in said cause, except his

own application for a continuance long enough in which to
return the said deposition of this defendant as aforesaid from
London; that if said continuance had been granted by the
court, this newly discovered evidence hereinbefore set out
could have been secured and used upon the trial of said cause,
and could have been fully heard and determined, and would
have caused the said court to nd the issues in that cause for
this defendant; that said testimony of the payment, settle
Dacnussn Tum, 1881.
555
Fisher v. Greene.
ment and discharge of the said four notes, as hereinbefore set

out, if presented to the court, would present an entirely dif
ferent case for this defendant from that which was before the
court when judgment was rendered against him; that it is not
what was tried before in said suit, but it is new matter then
unknown to this defendant, and that such evidence is not cu

mulative in its nature, but goes directly to the merits of said
suit and substantial defense on the merits to the whole of the
said plainti"s claim.
And this defendant further alleges upon information and
belief, and so charges the fact to be true, that in the purchase

of said four notes from the said assignee in bankruptcy, as be
fore stated, the said Bayaud acted as the agent of the said
Greene; that the said Bayaud is and has been in some way
interested in the prosecution of the said suit in which said
judgment was rendered against this defendant on said four
notes, and that said Greene and Bayaud have been acting
throughout in collusion with each other in the commencement
and prosecution of said suit for the purpose of cheating and
defrauding this defendant and collecting from him what they
both knew, and have all the time known, to be an unjust debt,
and to have been paid, satised and discharged; tliat the said
\Villiam II. Greene and the said George D. Bayaud, although

well knowing that the said four notes were paid and discharged,
wickedly and fraudulently conspired together to transfer the
said four notes to said Greene without the knowledge of this

defendant, who, as heretofore stated, was ignorant ot' their ex
istence until the commencement of said suit, and thereafter
fraudulently concealed from him the payment, settlementnnd

discharge of the said four notes and all the evidence thereof,
and cnnningly, deceitfully and fraudulently withheld from this
defendant and his attorney such information, when in their
power so to give it, and deceitfully and craftily omitted all
mention or reference of such payment in their testimony given
in said suit; that the said Bayaud, in his testimony given in
said suit, declared evasively that he had received no money on
oo6
~1
SUPREME Counr or CQLORADO.

Fisher v. Greene.
said notes from this defendant or his agent, Heyer, and de
clared that they were unpaid when they became due, and thus
misled the attorney of this defendant on the cross-examination
of said Bayaud, and to whom said payment to said Reynolds
was then unknown, while he, the said Bayaud, Well knew at
the time he was so testifying that said notes were fully satis
ed in the said settlement with said Reynolds, as hereinbefore
stated.
And this defendant further alleges, and charges the fact to
be true, that the claim of the said Greene founded upon said
four notes, and the judgment so obtained thereon against him

is fraudulent and entirely destitute of foundation, and, under
the facts hereinbefore set forth, could not have been made in
good faith; that the said Greene knew that his said claim was
invalid by reason of its prior discharge at and before the com
mencement of said suit upon said notes, and that by reason of
the said conspiracy and fraud of the said, Greene and the said
Bayaud to conceal the truth and facts and evidence heretofore
set forth, this defendant was unable to make his defense to
the said suit in said court, according to the truth of the case;
that said judgment was thereby fraudulently obtained, without
any fault or negligence of this defendant, and is wholly unjust
and contrary to equity and good conscience, and should be
vacated, annulled and held for naught, and a new trial ordered
by this court, in order that this defendant may have the
benet of such newly discovered evidence, and be relieved from
the said frauds of the said Greene and Bayaud.
that on or about the 22d day of March, A. D. 1879, he led
his bill in equity against the said plaintiff, Greene, in the said
Superior Court of Cook county, State of Illinois, being the

same court in which said judgment was rendered as aforesaid,
and on the equity side of said Superior Court, setting up the
same facts alleged in this answer or cross-complaint, and pray
ing in said bill that the said Greene may answer said bill ',
that said judgment be set aside, vacated and held for naught,
C;
I \1
C1
Fisher v. Greene.
and that a new trial of said cause be ordered by said court by

reason of the said facts, and that said Greene, his attorneys,
solicitors, agents and servants be perpetually enjoined from in
any Way attempting to collect said judgment, or from assign
ing or transferring said judgment, and restraining him from
proceeding further against this defendant in said suit at law in
said Superior Court of Cook county, and that this defendant

might have such other and further relief in the premises as
the nature of the case might require, and that a writ of in
junction and process of subpoena issue against said Greene, re
straining said Greene, his attorneys, solicitors, agents and ser

rants from in any way attempting to collect said judgment and
from proceeding further against this defendant in said suit,
and commanding said Greene to answer said bill of complaint;
that said process of subpoena did so issue, and that said bill is
now pending in said Superior Court of Cook county undeter
mined, on the equity side of said Court.
that said Greene was, at the time of ling said bill of complaint
as aforesaid, and is now, a resident of Providence, in the State
of Rhode Island, and was fully apprised of the ling ofsaid bill in
equity in said Superior Court of said Cook county, as aforesaid,
and that said bill was pending in said court undetermined;
nevertheless, he, the said Greene, well knowing the facts, and
knowing that he resided beyond the jurisdiction of said Su
perior Court of said Cook county, and where he could not be
held amenable to its writ of injunction, and in furtherance of
his said conspiracy with said Bayaud to cheat and defraud this
defendant and cause him to pay said four notes unjustly, and
to further annoy, oppress, cheat and defraud this defendant in
the premises, after the rendition of said judgment and the l
ing of said bill in equity, procured a transcript of said udgment
on said four notes, so as aforesaid rendered against this defendant,
and on or. about the 15th day of April, A. D. 1879, com
menced this action against this defendant, which said action is
based and founded upon the same identical judgment, so ob
558
Scramxn COURT or COLORADO.

Fisher v. Greene.
tained as aforesaid upon said four notes in said Superior Court

of said Cook county, and procured a writ of attachment to be
issued in said last mentioned suit and levied upon property in
said county of Arapahoe as the property of this defendant;
that the said Greene well knew at the time he commenced said
suit in this Court that the said judgment, and the record of
proceedings in which the same was rendered in said Superior
Court of Cook county aforesaid, had been removed,4by writ of
error, to the Appellate Court of said State of Illinois, and was
then pending and undetermined in said Appellate Court; that
said Greene also well knew at the time of the commencement
of ths suit that this defendant had also led said bill in equity
in said Superior Court, praying the relief as hereinbefore stated,
and that said bill was then, and is now pending in said court
undetermined; that said Greene also knew, and is informed of
the fact, that after said judgment was airmed by said Appel
late Court as before stated, that the said judgment and record
of proceedings in said cause were thereupon removed from said
Appellate Court to the Supreme Court of said State of Illinois
for review, and that the same is now pending and undeter
mined in said Supreme Court.
Wll8I8fOl0 the said defendant demands judgment, and that

he be permitted in this action to show that said four notes,
upon which said judgment was rendered, were paid, satised
and discharged long before said judgment was rendered, and
that said plaintiff be enjoined by this court from collecting
said judgment from this defendant, and that said plaintiff be
temporarily restrained from proceeding further to prosecute
this suit until the said suit now pending in said Supreme
Court of Illinois is fully determined and ended, and also until
said bill in equity, now pendingin said Superior Court of said
Cook county, is also determined and ended; and that this de
fendant have such further and other relief in the premises, as

to the court may seem just and equitable in the premises.
The defendant in error interposed a demurrer, and alleged
as grounds therefor:
559
Fisher v. Greene.
First.
That the same does not state facts sufficient to con
stitute a defense to this action.
Second. Upon the ground that said answer and the matters
and things therein contained do not constitute any defense to
the cause of action alleged in the complaint herein.
Third. Upon the ground that the facts alleged in said an
swer are not sufficient to constitute a cause of action, nor to
entitle the defendant to the relief therein prayed.

Fourth. Upon the ground that the cross-complaint in said
answer does not state facts sufficient to constitute a cause of
action.
Fifth. Upon the ground that the facts set forth in the
cross-complaint in said answer are not sufficient to entitle the
defendant to any relief.

The demurrer was sustained and judgment rendered for
defendant in error.
To reverse this judgment the plaintiff in error prosecutes

this writ.
Messrs. CHARLEs & DILLON, for plaintiff in error.

Mr. W.M. B. MILLs, for defendant in error.
ELBERT, C. J. This is an action on a judgment obtained by

Greene against Fisher, in the Superior Court of Cook county,
Illinois, February 10, 1879, for $10,079.14.
The only question concerns the sufficiency of the defense
presented by the defendant's cross-complaint.

The cross-complaint is in the nature of a bill to enjoin the
collection of a judgment at law.
The relief asked is, that the defendant be permitted to
show that said four notes, upon which said judgment was
rendered, were paid, satisfied and discharged long before said
judgment was rendered, and that said plaintiff be enjoined

from collecting said judgment.
Stripped of its verbiage, the cross-complaint presents two
grounds of relief against the judgment sued on. First. Fraud,
560

Fisher v. Greene.
in that the promissory notes upon which this judgment was

obtained, were not the notes of the defendant; were falsely and
fraudulently obtained from an agent having no authority to
execute them; were made without consideration, and came to
plainti"s hands after maturity, coupled with the inability of

the defendant, without fault or negligence of his own, to pre
sent his defense in the trial at law.
Second. Payment, the evidence of which rst came to the
knowledge of the defendant after it was too late to produce it
at the trial at law.
In regard to injunctions after a judgment at law, Mr. Story
states the general principle to be that any facts which prove
it to be against conscience to execute such judgment, and of
which the injured party could not have availed himself in a
court of law, or of which he might have availed himself at
law, but was prevented by fraud or accident, unmixed with
any fault or negligence in himself or his agents, will author
ize a court of equity tointerfere by injunction to restrain the
adverse party from availing himself of such judgment.
Story Eq. Jur. Sec. 887.

Again he says: But where the facts upon which relief is
claimed, existed before the trial at law, and were known to the
party seeking the relief, or might have been discovered by the

exercise of ordinary diligence, and were as much a defense at law
as in equity, no redress can ordinarily be obtained in equity.
2 Story Eq. Jur. Sec. 15, 72, at seq.

The facts stated by the cross-complaint do not bring the de
fendants case within these rules.
That the notes upon which the judgment was founded were
not the notes of the defendant; that they were falsely and
fraudulently obtained from an agent having no authority to
execute them; that they were without any consideration, and
came to the hands of the plainti' after maturity, were all
matters of defense of which the defendant should have availed
himself in the action at law. and without more, is not sui.
cient ground for equitable relief.
561
Fisher v. Greene.
This is not controverted, but the defendant claims, that by

reason of the absence of his, the defendants, testimony, with
out fault or negligence on his part, he was unable to present
his defense to the court in said cause.
This allegation is predicated on the fact that the defendant's
deposition, which was taken in the City of London, did not

reach the court sitting in Chicago in time for the trial, and this
he alleges was without fault or negligence upon his part. '
The defendant tells us in his cross-complaint, that it was
absolutely necessary for him to examine his books, letters and
reports with reference to said business transactions with the
said Bayaud, all of which were in London, England, in order
to give his testimony intelligently in defense of said suit.
Notwithstanding this necessity, and the considerable amount
involved in the litigation, the defendant did not start for Lon
don, until some time in the fall of 1878; and the dedimus to
take his deposition, was not issued until the 16th of November,
1878.
The law of notice was such that the deposition could
not be taken under the dedimus before the 15th of January,
1879, and the engagements of the commissioner were such

that it was not completed until the 18th of February, 1879,
the day before that xed for the trial of the cause in Chicago.
The service of summons was on the 19th of May, 1877. Thus
it appears the defendant delayed eighteen months after the

service of summons before he started on this journey to Lon
don, which he says was necessary to enable him to testify in
telligently concerning his defense.
Why he did not send for his books and papers is not_ex
plained, and why he did not start sooner on so important a
mission, is but indifferently explained. He alleges in general
terms that he went to California on important business,
was taken sick and was detained for a long time. Such al
legations are too indenite for acceptance. We are unable to
tbrm any judgment, either of the importance of the business
which took him to California, or of the length of the time he
was detained by illness. Judgments at law would be of but

36
532

Fisher v. Greene.
little avail, if they could be opened up upon such a showing.

These same facts were submitted to the court that tried the
cause in an application for a continuance, and the refusal of
the continuance was assigned for errorin the Supreme Court of
Illinois. Craig, J., says:
The motion was predicated upon an affidavit of the attor
ney of the defendant, to procure a continuance on the ground
that the deposition of the defendant, Fisher, had not been re
turned into court. It is quite apparent from an inspection of
the aidavit that due diligence was not used to obtain the evi
dence, and for this reason, if for no other, the court could not
do otherwise than overrule the motion.

It appears from the aidavit that it was necessary for Fisher
to examine his books and papers, which were in the city of
London, before he could properly testify in the case. That he
went to London in November or December, 1878; but the
pleas were led in June, 1877, and the aidavit does not satis
factorily show why Fisher did not go to London sooner. Al
most eighteen months intervened after the issues were made
up before the defendant started for London. It is true the af
davit attempts to show that defendant was detained in Cali
fornia by business and sickness, but the nature of the business
is not shown, so that the court might see that he was necessarily
detained. But if the defendant had been detained in this
country by business, for aught that appears, he could have
sent for his books and papers, and then had his deposition
taken here, or appeared on the stand iu person. The rule is
well settled that a case will not be continued to obtain the
deposition of an absent witness, unless due diligence has been
used to obtain the evidence. We are satised from a careful
perusal of the afdavit, that if such diligence as a prudent man

would exercise had been used, the evidence might have been
obtained; and that it was the fault of the defendant that the
evidence was not procured.
A want of diligence that would forbid the continuance of a
cause would surely forbid disturbing the judgment. In
563
Fisher v. Greene.
our view the claim of the defendant that he was unable to
avail himself of his defense at law, without fault or negligence

on his part, is wholly without foundation.
Upon the question of newly discovered evidence of pay

ment, the cross-complaint is equally unsatisfactory. It consists
of allegations of what one Reynolds told the defendant. It
alleges that on the day before the cause was set for trial, he met
to his surprise, one William H. Reynolds, an old acquaintance,
with whom he had transacted business before the year 1866,
and that, knowing of Reynolds acquaintance with both Greene
and Bayaud, he informed him of the suit then pending against
him; and then Reynolds informed him, that in January, 1867,
he had attached all of his (Fisher's) interest as a special partner
with Bayaud, and that thereupon Bayaud made a full state
ment of all the affairs of the plaintiff in error with said Bay
aud, and after debiting plaintiff in error with everything
chargeable to him, he paid Reynolds the sum of $5,000, all of
Fisher's interest, and that this sum was paid only after full
satisfaction and discharge of all debts and sums then owing
from him to Bayaud.
This information given the defendant by Reynolds is made
the basis of his defense of payment.
It is open to several serious objections.
1. It is but hearsay, and can have no status in a court of justice.
It is unsupported by anything in the nature of evidence, not
even by the affidavit of Reynolds to the details of the settle
ment which is claimed operated as a payment and satisfaction
of the notes in question.
2. It is to be observed that Reynolds in this conversation
spoke of a transaction twelve years prior thereto; of an attach
ment suit against Fisher's interest in the firm of Fisher &
Bayaud, of which no record evidence is presented; of an in
debtedness to Reynolds on the part of Fisher of $5,000, of
which Fisher then heard for the first time; of a statement of
the affairs of the firm of Fisher & Bayaud, of which it is not
alleged by either Reynolds or the defendant that it included
the notes in question.
564
SUPREME Comm" or Conoaano.

Le Fevre v. Castagnio.
That the notes were paid and satised by the settlement, is

but an inference of the defendant, and by no means a neces
sary one. They were not the subject matter of the settlement,
nor does Reynolds say that they were in any manner dealt with
or even mentioned.
That Reynolds would testify to what he told the defendant,
we are not advised, further than the defendant believes he
would, and were he to testify to all he is alleged to know, it
would, at best, raise but an inference.
That the partner, Bayaud, for the purpose of relieving the
rm of an attachment, should pay $5,000 on the personal in
debtedness of his partner, Fisher, when Fisher was personally

indebted to Bayaud in the sum of $10,000 is not necessarily
impossible.
It certainly is not more unreasonable than other
features of the story.

The case made by the cross-complaint, in its facts, and in
their sufficiency, falls far short of the cases cited in its sup
port, and in our judgment does not authorize us to disturb the
judgment at law.
The judgment of the court below is afrmed, with costs.
Aia-med.
iii
Ln Fnvnn V. CASTAGNIO.
1.
Interest in prots does not necessarily make a person a partner orliable
as a partner.
2. Where a person is only interested in the prots of a business as a

means of compensation, he is not a partner. In such case his interest is not
a. property in the prots as such, but a claim against them as a fund out of
which, when ascertained, he is to be compensated.
Appeal from District Court qf Oumy County.

Casmomo brought this action for work done by himself,
Collitto and Wensen (the two latter having assigned their
565
claims for work to Castagnio), against Moffett and Le Fevre

as partners. A verdict was rendered in favor of the plaintiff
in the district court, and judgment entered, from which Le

Fevre appealed to this court.
The complaint alleged that in October, 1877, Le Fevre and
Moffett were partners, working the Yankee Boy mine under
lease, and while so working as partners, plaintiff and his as
signors entered into a contract with Le Fevre and Moffett to
work on the mine. That they did the work, and that of the
amount earned a certain amount was due and unpaid.

The defendant Moffett answered, admitting that plaintiff
and his assignors worked for himself and Le Fevre; that the
amount claimed was earned, but that plaintiff and his assign
ors expressly contracted that they would not hold him and
Moffett personally for their wages, but they would look to the
ore mined for their pay and have a first lien on the ore mined
therefor.
He further averred, that the lease on the Yankee
Boy mine, under which he and Le Fevre worked, expired in

July, 1878; at that time their partnership ceased; that at the
time there was ore on the dump, and tools, furniture and pro
visions which were partnership property, sufficient to pay the
said claims; that LeFevre took possession of them, and asks
that Le Fevre be compelled to satisfy the claims out of the
ore, etc.
Le Fevre in his answers, among other things, denied the

partnership in toto, and further denied that as a partner, or in
dividually, he employed plaintiff or his assignors, or that they,
or either of them, ever did work for him individually or as a
partner.
The agreement between Moffett and Le Fevre, adverted to

in the opinion of the court, was as follows:
This agreement, made and entered into this twenty-third
day of October, A. D. 1877, by and between Robert W. Mof
fett, of the county of Ouray, and State of Colorado, and Leon
Le Fevre, of the county of Hinsdale, and State aforesaid, wit
nesseth : that the said Rob't W. Moffett, on or about the 5th
566

day of October, 1877, leased for the term of one year, from the
owners thereof, the mining claim or lode known as the Yan
kee Boy, situate in Mount Sneles mining district, Ouray
county, State aforesaid, for the purpose of working and taking

ore therefrom; and that being without the means necessary to
work to advantage the said mine, in consideration of the cove
nants on the part of the said Le Fevre, to be performed as

hereinafter provided, hereby agrees to pay to the said Le Fevre
one-fth of all the prots that may be derived from working
said mining claim during the time of his lease aforesaid; that
is to say, from the 5th day of October, 1877, to the 5th day of
October, 1878; and the said Robt W. Moffett further agrees
with the said Le Fevre, that he will deliver to said Le Fevre
all ores that shall be taken out of said mine on the dump
thereof, on the terms hereafter named, until all sums that may
now be due, or that may hereafter become due to said Le Fevre
for advances made thereon, shall have been fully repaid; and
the said Moffett agrees and binds himself not to sell, remove,
or in anyway dispose of any ores from said mine, until all
such advances as are herein provided for, shall have been fully
repaid. And the said Leon Le Fevre hereby agrees to fur
nish the said Moett, for the purpose of enabling him to ad

vantageously work the said mining claim, the sum of twenty
two hundred dollars, or the equivalent thereof, in such mer
chandise or supplies necessary to the working of said mine, as

he, the said Moffett, may desire; provirlal, that the said sum
shall include the cost of transportation from the place where

such merchandise or supplies may be purchased, to the said
mine. And the said Le Fevre further agrees that he will re
ceive on the dump of said mine, all ore that may be taken
therefrom, transport the same to the to\vn of Lake City, where
the same shall be properly sampled, and that he will, after de
ducting the necessary cost of transportation, account to the
said Moffett therefor two cents higher per oz. than the term
of the schedule of prices received this day from the Ocean
Wave Mining and Smelting Company of Lake City, dated
567
September 1st, 1877, which schedule, marked A, is attached

to, and is hereby made a part thereof; and that so soon as he
shall have received ore aggregating in value the full sum of
twenty-two hundred dollars, he will advise the said Moffett
thereof; and it is hereby mutually agreed, that after the
amount of the said advances shall have been repaid as above
provided, all ores taken from the mine during the term of this
agreement, shall be disposed of to the highest bidder for cash.
And the said Moffett hereby agrees that during the term of
this agreement he will keep and preserve a true and correct
account of all receipts and disbursements for and on account
of the said mine, and that he will afford to said Le Fevre at
all reasonable times access thereto, and that the same shall be
used in determining the amount of profit that may be made, and

that being in charge of said mine, will conduct the operations
thereof with the greatest possible degree of economy.
To all of which the said parties hereto, hereby bind them
selves, their heirs, administrators and assigns, jointly and
severally by these presents.
In witness whereof they have hereto affixed their hands and
seals, at the town of Lake City, county of Hinsdale and State
aforesaid, this the day and year first above written.
(Signed)
R. W. MoFFETT. [seAL]
LEoN LE FEVRE. [SEAL]
Signed, sealed and delivered in presence of
(Signed)
GEO. E. NoLTE.
The agreement entered into in July, 1878, and referred to
in the opinion of the court, was as follows:
This agreement made and entered into this 5th day of
July, A. D. 1878, by and between all the parties, whose names
are hereto attached
Witnesseth: That whereas, now there is due and unpaid

to the following persons the amounts following their respective
names, for work and labor done on the Yankee Boy lode, sit
uated in Mount Sneffles mining district, in Ouray county,
State of Colorado, to wit:
S. R. Adams, $18.25; D. D. Shea, $390.24; John Kimberlin,
568

$45.62; B. A. Toler, $~L7.77; Dan. Beaton, $51t4.74; Ed. Magm

nis, $608.10; John Castagnio, $678.32; \Villiam Moher, $600.;
A. Butler, $45.75; C. W. Smith, $385.01; W. L. Morrison,
$29.40; Joseph Wensen, $574.45; Antonio Oollitto, $1-10.34;
Nelson Peterson, $225.55; Gates Avery, $79.00; H. H. Closly,
$13.25; Leon Le Fevre, $6,000.00; J. M. May, $9~1.50; J. C.

Anderson, $86.00.
Said amounts being due from one R. W. Moffett for said
work and labor; and whereas, the said parties instituted suit
against the said Moett for the recovery of said amounts, and
having had certain ore attached'in aid of said suits, and all
parties being desirous of selling said ore to the best advantage,

it is here mutually agreed by the parties hereto, that said suits
so instituted as aforesaid, shall be held in abeyance, and that
one A. G. Siddons shall be, and is hereby, in consideration of
certain money by him to be raised, appointed and authorized

to take possession of all said ore, and dispose of the same for
the best market price, at Lake City, in Hinsdale county, State
aforesaid. But the said Siddons, shall rst have said ore
brought to Ouray, and sampled and assayed, furnishing to any
one of the parties thereto, who may be designated by the
others, a duplicate of such samples or assays; and whenever
the said ore is sold by said Siddons, and returns are made to
him for the same, he shall pay out the proceeds thereof to the
said parties whose names are hereto attached, save to himself,
as follows, to wit:
First.
Upon the delivery of this agreement, he shall pay
to all of said parties, save and except the said Le Fevre, twenty
ve per cent. of their respective claims, as above designated.
Second. Whenever a sufcient quantity of ore is delivered
to said Siddons that will justify him in making another pay
ment of fty per cent.. he shall pay the same out in the man
ner following: To all of said parties twenty-ve per cent. on
the amount on their original claims, and to the said Le Fevre
a like amount of money.
Third. Whenever said ore is all disposed of, or as fast as a
sufficient quantity is disposed of to justify demand of twenty
569
five per cent, another dividend of

shall be declared and
paid, and one-half of said dividend shall then be divided
equally between all of said parties save Le Fevre, in propor
tion to the amounts of their several claims; and the other
half of said dividend shall be paid to the said Le Fevre.

It is agreed that the said Siddons shall thus continue to pay
out of the proceeds of said ore, until all of said claims are
paid in full, or until said ore is entirely disposed of.
The said Siddons shall be permitted to deduct from the
money derived from the sale of said ore, all just and reason
able expenses and charges attending the transportation, assay
ing, and cost of delivering of said ore, dividing the net pro
ceeds, as aforesaid.
And it is further stipulated and mutually agreed, that any

one of the parties hereto designated by the others, shall at all
times have full information from said Siddons in respect to the
sale and disposition of said ore, and be at all times permitted
to take samples of said ore, as the same is brought down to
Ouray, and have the same assayed.
If, when all of said ore is disposed of any amount shall re
main due and unpaid to any of the said parties, this agree
ment shall be without prejudice to his right to take a judg
ment against the said Moffett for the balance unsatisfied.
It is further agreed, that when the said money shall be paid
by the said Siddons, he shall return ten per cent. of the sev
eral amounts, save and except the said Le Fevre, and pay the
same to M. S. Taylor for legal services.
(Signed)
LEoN LE FEVRE,
EDwARD MAGINNIs,
DANIEL BEATON,
ANTONIO Col.LITTO,
M. L. MoRRISON, .
JoHN KIMBERLIN,
NELsoN PETERSON,
J. M. MAY,
S. R. ADAMS,
Joseph L. WENSEN,
DANIEL D. SHEA,
CHARLEs M. SMITH.
J. H. ANDERSON.
JoHN CASTAGNIo,
WILLIAM MoHER,
B. A. TolRR,
H. H. CLosLY,
GATEs AvKRY,
G. L. BUTLER,
~i
U1 Q

During the progress of the trial, Castagnio, while being ex

amined as awitness in his own behalf, was interrogated by his
counsel, and answered as follows.
Q.
Did you ever have any conversation with the man
Perdue in regard to his connection with the mine?

A. Yes, sir.
Q.
You may state what it was?
To the asking of which question and the giving of this con

versation, the defendant Le Fevre objected, for the reason that
it was hearsay, and the conversation of _a third party, and the
alleged agency had not been established. But the court over
ruled this objection, and permitted said conversation to be
given,
to which
ruling of the courtl the said defendant then
and there
excepted.
A. W113, one time he was upone afternoon he came
down herethere was a break in one of the trucks and he had
to get jacks up there, and he was coming up along there, and

when he got up there in the afternoon, he said he was tired,
when some of the boys said they did not want to work all win
ter without getting any money; and he tell me he was there
for the business to see about that ore, to see how the business
go in the mine; he was there as Mr. Le Fevres agent, and he

said Le Fevre would be up here in a few days, and would pay
you. He said he expected Mr. Le Fevre every day. He said
nothing more at that time, and for a good while afterward.

I commenced work on the last contract, and about a week be
fore I got through I asked Jack Perdue for my pay.
A week
or ten days after that I quitted work, and he told me he was

sorry, and that as soon as he got those sacks full of ore and
taken down, he would have money enough to pay all the men;
and I said I would wait until Le Fevre came over. One day
after
came down
town,
about thefor20th
of June,
and
askedthat
JackiI Perdue
what inwas
the prospect
getting
my pay,
and he showed me a letter from Le Fevre. I gave the letter
back to Jack Perdue, and do not know where it is now. *
-X
57.1
Le Levre v. Castagnio.
Messrs. T. M. PATTERSON, E. L. CAMPBELL and M. B. GERRY,

for appellant.
Messrs. J. W. Mills and J. P. CAssEDY, for appellee.

ELBERT, C. J. This was an action brought by the appellee
against the appellant and one Moffett, seeking to charge them
as partners.
Moffett admitted and appellant denied the partnership. The

written agreement between appellant and Moffett did not, in
our opinion, constitute them partners either inter se or as to
third parties. From the recitals of the agreement it is clear
the parties themselves did not contemplate a partnership.
Moffett had some time prior thereto leased the Yankee Boy
mine for the purpose of working it, but was without the nec
essary means to work it to advantage. For the purpose of en
abling Moffett to work his mine, the appellant agreed (upon the
terms set forth) to furnish him with money or supplies to the
amount of twenty-two hundred dollars.
In consideration of
these advances, Moffett agreed to pay Le Fevre one-fifth of all

the profits derived from working the mine during the term of
the lease.
To secure Le Fevre in his advances, Moffett further
agreed to deliver to him all ores taken out of the mine on the
dump, until Le Fevre should be repaid all his advances.
This is the substance of the agreement, and is the common
case of a merchant or other person making advances of money
or goods, or both, to enable a miner to work his mine.
Le Fevre had no interest in the lease, nor any control over
the working of the mine. Limitedly he controlled the ores
mined, but only for the purposes of securing his advances.
It is insisted, however, that sharing in the profits made
him, as matter of law, a partner as to third persons.
Interest in profits does not necessarily make a person a

partner, or liable as a partner. Parsons on Partnership, 67."
To have that effect, it must be, as the books express it, an in
terest in profits as profitsa proprietary interest, or, as Mr.
Justice Clifford says in Buthold v. Goldsmith, 24 Howard,
572
SUPREME Conan. OF COLORADO.

I42 Fevre v. Castagnio.
537, the party must be in some way interested in the prots

as principal. Or as expressed in Harvey v. (J/tilzls, 28 Ohio
St. 319, the evidence must show that the persons taking the
prots shared them as principals in a joint business, in which

each has an express or implied authority to bind the others.
Where a person is only interested in the prots of a busi

ness as a means of compensation, he is not a partner.
In such
case his interest is not a property in the prots as such, but a

claim against them as a fund out of which, when ascertained,
he is to be compensated.
Mr. Parsons says: A mere payment or promise to pay
out of the prot a sum of money as a specic proportion of
the prots, does not necessarily constitute the payee a partner,
and gives him no interest in the prots and no right to the

prots, but only a personal claim against the promisor for such
money or for such a share of prots after they are ascertained,
and may be divided. * * * The words which the parties

use, and all of them, and all the parts and provisions of their
agreement, as well as its general character and their relation to

each other are to be looked at, and if the whole evidence leads
to the conclusion that the receiver of money took it in good
faith, only as wages, or specic compensation or payment, and
did not intend to acquire any interest in or an_v control over
the business, or in the prots as they accrue, and before they
are ascertained and divided, but only after they were ascer
tained to nd in them the fund, and in their amount the meas
ure of his payment, he is no partner nor liable as such.
Par
sons Part. 71* and notes.

Again he says, after reviewing all the leading authorities
upon this subject : On the other hand, we think that, not
withstanding dicta of immense weight apparently to the con

trary, the cases show that there are but two grounds upon
which a man can be liable as a partner to third parties, and
that is, if a man has not been held out as a partner, he can be
chargeable as such only when he holds that relation to prots,
which we believe to be the ultimate test of partnership, both

573
inter se and as to third parties ; that is, unless he has some

ownership in or of the prots as they accrue, and are not yet
ascertained and divided into portions. Parsons Part. 71*,
note Z.
In Richardson v. Hugitt, 76 N. Y. 55. the Court, in speak

ing of the prot test, says : And here comes another excep
tion to the rule last stated, which is, that when the person has
no interest in the capital or business, and is to be remuner
ated for his services by a compensation from the prots, or

measured by the prots, or what is to depend, as in case of
seamen or other voyagers, upon the result, it has no applica
tion.
Where, then, one is only interested in the prots of a
business as a means of compensation, he is not a partner.

The agreement in question, while it stipulates that the
appellant is to be paid one-fth of the prots, falls clearly
within the exceptions to the rule, that interest in prots

involves liability as a partner. Its leading recitals and terms
show its true character to be a mere contract to advance money
or supplies, not as an owner, but as a creditor, relying on the
ores to repay his advances, and on the prots as a fund for a

compensation in lieu of interest.
The court below correctly instructed the ury as to the true
character of the agreement, but left it to the jury to nd

whether the appellant had held himself out as a partner in
such a manner as to render him liable. There was substan
tially no evidence to support this theory of the case, on the
contrary, it appears that the appellant lived and did business
in another county, and from the date of the agreement be
tween Moffett and the appellant in October 1877, until about
the 10th of July following, when the mine was closed, the ap
pellant never visited the mine, nor does he appear to have ex

ercised a single act of control in its management.
When, in July, the disorder of Mo'etts affairs demanded his

presence at the mine, he found it closed, and the appellee and
other workmen in possession of and guarding the ores which

they had attached for their wages.
574

Home et al. v. Duff et al.
The agreement which was then entered into by the appel
lant, the appellee and the other workmen, in regard to the dis
position of the ores for their common benefit, affords a strong
presumption that at and prior to that date the appellant had

not been thought of as a partner. In this agreement he is
scheduled as a creditor entitled to share the proceeds arising
from a sale of the ores, and Moffett alone is mentioned as the
debtor.
The testimony touching the declarations of Perdue was of

declarations touching payment and not partnership, and if
anything, was an undertaking to pay the debt of a third person.
This testimony, however, was not competent, as Perdue's
agency for any such purpose was not established. The court
erred in admitting it.
A careful examination of the record shows no evidence to
support the verdict of the jury, and the court below should
have granted the motion for a new trial.
The judgment is reversed, and the cause remanded.
Judgment reversed.
HoME ET AL. V. DUFF ET AL.

In order to give the county courts jurisdiction in any action, suit or pro
ceeding, it must affirmatively appear in the complaint that the value of the
property in controversy, or the amount involved does not exceed the sum of
two thousand dollars. Gen. Laws, p. 253.
Error to County Court of Ouray County.

Messrs. WM. StoRY, GEO. W. ANDREws and ENos MILEs, for
plaintiffs in error.
Mr. JoHN P. BRocKwAY, for defendants in error.
-*
Dacamssa TERM, 1881.
\J
Q1 U1
Home et al. v. Du at al.
ELBERT, C. J . The constitution provides that county courts

shall not have jurisdiction in any case where the debt, damage
or claim, or value of property involved, shall exceed $2,000,
except in cases relating to the settlement of estates of deceased
persons.
The general laws provide that : The county courts of the
several"counties of this State shall hereafter have concurrent
jurisdiction with the district courts in all civil actions,
suits and proceedings whatsoever, where the debt, damage or
claim, or the value of the property involved, shall not exceed
$2,000, except as otherwise provided in this act.
Section 2 provides : In order to give said courts jurisdic
tion in any action, suit or proceeding, the complaint, or com
plaints, shall state that the value of the property in contro
versy, or the amount involved, for which relief is sought in
such action, etc., does not exceed the said sum of $2,000.
General Laws, p. 253.

The property in controversy in this action is a certain
mining claim, to which plaintis below allege apossessory
title, to recover possession of which, with damages for deter].
tion, this action was brought.
There is no allegation that the value of the property does
not exceed two thousand dollars. The statute makes such
an allegation essential, in order to give the county courts
jurisdiction in any action, suit or proceeding.
For want of this or an equivalent allegation in this case,

the jurisdiction of the county court does not airmatively ap
pear, and the judgment must be reversed.
Judgment reversed.
576
SUPREME Coonr or COLORADO.

Eddy v. Hall.
EDDY v. HALL.
A frame building erected upon and attached to the realty and used as a
tannery, held in this case to be real estate and not repleviable.
Error to District Court of Weld County.
Sarah E. Eddy, the plaintiff in error, brought her action in

the District Court of Weld county, to recover possession of
certain property. The complaint alleges that the plaintiff.
On and prior to September 1st, 1878, was the owner of, and
entitled to possession of, the following described personal
property, goods and chattels, of $550 value, to wit: One
frame building, formerly used for the purpose of a tannery
by the defendant (Eli Hall) and one James H. Johnson, as
partners, under the rm name of Hall & Johnson; also, one

steam engine and boiler, in said building; also, 50 buffalo
robes and 28 pairs of mittens, more or less; also, all belting,
shafting, pulleys, utensils, tools, vats, pumps, and all other
apparatus used by said Hall & Johnson, in said tannery,

and about said building.
Defendant wrongfully holds and possesses above described

property, and without plaintiii"s consent, now detains the
same from her possession.
On July 19th, 1879, plainti duly demanded of defendant
possession of said goods, etc., but he refused and still refuses
to deliver the same, and still unlawfully withholds and detains
the same from plaintiff, to her damage in the sum of $550,

value thereof, and further sum of $100 for detention thereof.
Demand of judgment against defendant for recovery of pos
session of said goods and chattels, or for $550 in case a de
livery cannot be had, together with $100 damages for the

detention thereof and costs.
The defendant demurred, the demurrer was overruled, and
the defendant answered over.
The answer denies ownership

\
577
Eddy v. Hall.
in plaintiff of the following property, mentioned in complaint:

Building, steam engine, boiler, belting, shafting pulleys,
vats, pumps, and other apparatus, machinery or fixtures at
tached to such building mentioned in complaint, or any part
thereof. Denies that on April 1, 1878, or at any time since,
the above was personal property, but from a time long prior
to the day aforesaid it has been and still is a part of the realty
formerly belonging to defendant, but since and now belonging
to one Jacob Hoover.
Avers that defendant does not hold or possess such property

of plaintiff, nor has she any right thereto.
And that plaintiff did not, on July 19, 1879, or at any other
time, demand possession of such property, otherwise than that
she made demand for it as the owner thereof, and that he
refused to deliver the same.
The cause was tried by the court, and in support of her case
the plaintiff offered in evidence the following agreement:
Articles of agreement, made the 23d day of October, 1875,
between Eli Hall and J. H. Johnson, both of Greeley, Weld
county, Colorado, witnesseth:
Said parties have agreed to become co-partners in business,
and by these presents do agree to be co-partners, under and by
the name or firm of Hall & Johnson, in the tannery busi
ness, but more particularly the manufacture of buffalo robes
and other skins, * * and occupy all that is needed for said
business of Lot No. 8, of the N. W. # S. E. # of Sec. 6, T. 5,
N. R. 65 W., in said town of Greeley, for which said Eli Hall
is to be paid therefor a rental of $2 per year.
The partnership to commence on the said 23rd day of Octo

ber 1875, and to continue five years.
The buildings now on said lot, to be used in the partnership

business, are 14 by 20 feet in size, with lean-to addition 12 by
14 feet, which, with the tools used therein, including the use
of a patent stretcher and knife, amounting to $266.75 in value,
is furnished by said Eli Hall for the use of the firm, which
amount of $266.75 is to be credited on the firm books to said
37
578
SUPREME Court OF COLORApo.

Eddy v. Hall.
Eli Hall, and on the termination of this co-partnership said

Hall is to take back said buildings at the same price, less the
wear and damage. * * *
ELI HALL.
[sBAL.]
J. H. JoHNsoN. [seAL.]"
The plaintiff also offered in evidence a deed of trust dated
March 7, 1877, from Eli Hall to B. F. Marsh, trustee, to secure
a certain note, conveying, among other property, lot 8 above

mentioned excepting and reserving from said lot 8 the tan
nery building erected thereon.
James C. Scott testified: This deed was signed in my

presence. Defendant said at the time the building was
reserved because company property, and not his individual
property. I was negotiating the loan, and wanted all the
buildings on the lot; but Hall objected, and said it was not
his property. The building in controversy is upon that Lot 8.
and described in the partnership agreement and trust deed.
The plaintiff then offered in evidence a bill of sale, in sub
stance as follows:
In consideration of $1,000, Hall & Johnson grant and con

vey unto Emerson & West, all and singular, the tannery
building and engine, and all the machinery and tools used in
connection with the business of tanning, situate on Lot 8, N.
W. H. S. E. #, Sec. 6, T. 5, N. R. 65 W., known as Hall &
Johnson's tannery, * * * and all the property and effects

of every description belonging to said Hall & Johnson, and
appoint Emerson & West irrevocably their attorneys, to do all

acts necessary to recover all of said property, and vest the same
in them ; to have and to hold, unto Emerson & West and their
assigns forever. Dated and sealed March 25, 1878; signed and
sealed by Eli II all and J. H. Johnson. .
The bill of sale contained the following indorsement:
For and in consideration of $1,000, Emerson & West sell
and assign all the within described property, and all their
interest in the same, of whatever nature, on August 3, 1878,

to Sarah E. Eddy.
579
Eddy v. Hall.
Upon cross-examination Scott testified:

It seems to me the tannery building, referred to in the co
partnership articles, had been erected before their execution,
but I dont remember distinctly. My impression is, Hall was
carrying on the business there before, himself.
The plaintiff also offered in evidence the following instru
ment signed by Hall & Johnson.
On this March 11, 1878, the undersigned members of the
firm of Hall & Johnson, Greeley, Colorado, have adjusted

their individual accounts in the firm, and find the firm owes
to J. H. Johnson, to cash paid for firm debts, $2,598.99; and

that the firm in like manner owes Eli Hall, for cash paid for
firm debts, $401.26; that J. H. Johnson has paid over Eli Hall,
of firm debts, $2,197.73, and the amount of this sum which
Eli Hall owes J. H. Johnson is $1,098.863.
George H. West, called on behalf of the plaintiff, testified:

Am a banker, and with Charles Emerson compose Emer
son & West. I signed the firm name to the transfer on back
of bill of sale. The sale from us to her actually took place,

as that assignment purports to show. We paid $1,000 to
Hall & Johnson, and received the property per bill of sale.
We received $1,000 in cash from plaintiff for our sale to her of
this property.
Hall had been using the tannery building, being near his
residence, for certain purposes, and wished to continue that
use. Gave him permission to do so, but told him I should hold
him responsible for the property in building. Gave him the
key, that he might have access to it. Told him he might so
use it until we made some disposition of the property. Prior
to the payment of $1,000 to Hoover by the sale to us, Hall &
Johnson owed him and wished him to take all the property
mentioned in bill of sale for $1,000 to be applied on indebted
ness to him. Hoover finally decided not to take the property.

The real estate was never in consideration in these negotia
tions. Over and over again it was stated the real estate was
Mr. Hall's, but the building was the firm property.
550

Eddy v. Hall.
These negotiations were through Mr. Freeman as Mr.

Hoovers agent, who knew we paid $1,000 on account of Hall
& Johnson.
George B. Wyman sworn:
Am acarpentcr and builder.
I helped to build the addition to the old part by Hall & John
son. They were getting ready for business. Put on an L to
the old building. It is a frame. My recollection is that the
addition was placed on brick.

On cross-examination the witness testied that in the new
part of the building large excavations had been made in
which th e tannery was carried on. Demand and refusal were
shown, and it appeared that the sheriff delivered the building
by turning over the key to the plaintiff.
The defendant offered no evidence, and thereupon the court

rendered judgment to the effect following:
That _plainti' is entitled to all property mentioned in com
plaint except the tannery buildings, and one cent damages for
detention; that she have and detain the same, and have execu
tion for damages and costs. The right of property in said
tannery building is not hereby determined, the same be
ing real property, and it is considered by the court the plain
tiff have leave to prosecute any appropriate civil action for the
recovery of any right, title, or interest which she may have in
and to the said tannery building mentioned in her complaint
herein, or for the value thereof, without being prejudiced by

this nding or judgment.
To reverse this judgment the plaintiff prosecutes this writ

of error.
Messrs. HAYNES, Dnumxo & HAYNES, for plaintiff in error.

Messrs. Tnouas GEORGE, J. M. FREEMAN and BLOOD & Baa
TELS, for defendant in error.

ELBERT, C. J. At the date of the sale to Emerson and
West, the defendant Hall was the owner of the lot on which
zhe building in controversy stood. It does not clearly appear
581
Eddy v. Hall.
how the building was attached to the realty, but it is prima

facie real estate, and that it was attached in some permanent
manner at the date of the sale is conceded by the argument.
The plaintiff in error relies on a constructive and not an
actual severance.
The parties evidently contemplated the sale of the building

without the land, and its severance and removal therefrom.
The effect of the sale was to give Emerson and West, or

their assigns, the right to enter upon the close of the defend
ant, to sever the building therefrom and remove it as personal
property. Shaw v. Carbray, 13 Allen, 464; Tyler on Fix
tures, 731, and cases cited.
Upon the subsequent refusal of Hall, the owner, to permit

the severance and removal of the building, the plaintiff had
her remedy, but it was not replevin. The court below cor
rectly held that replevin would not lie. The building was
real estate, and as such not repleviable. The agreement of the
parties did not, as is insisted, operate to give it the character

of personalty prior to severance.
We do not see that the case is in anywise different in prin
ciple from the case of a sale of standing timber to be cut and
severed from the freehold.
When severed, the trees become
personalty and not before. Claflin v. Carpenter, 4 Met. 580;

Lawson v. Patch, 5 Allen, 586.
Nor do we find anything in the co-partnership agreement

of Hall & Johnson, touching this building that changes the
result. At the date of their articles of co-partnership, Hall
was the owner of the freehold, and the building was already
erected upon, attached to, and a part of the realty, and so re

mained during the continuation of the co-partnership. Thus,
the true character of the sale to Emerson and West remains
unaffected as a sale of a building affixed to the realty, with the

right to sever and remove it.
Judgment of the court below is affirmed with cost.
Affirmed.
582

St. L. & D. L. & M. Co. etc. v. Tierney.
THE ST. LOUIS AND DENVER L.-mo AND MINING C011

PANY, AND THE COLORADO Con. Comnmv, Co
Panrnsas AS THE BOULDER VALLEY COAL Com

PANY v. TIERNEY.
'
1. It is an elementary principle that the object to be attained in the con
struction of a contract, is to discover and effectuate the intention of the par
ties, and to this end the court will adopt that construction which will bring it
as near the actual meaning of the parties as the words they saw t to employ.
when properly construed, will permit.
2. As a. guide to a. correct interpretation, the law also permits the subject
matter of the contract, the situation of the parties at the time of its execu
tion, and all the surrounding facts and circumstances to be taken into consid
eration.
3. A party will be held
that meaning which he knew the other party
supposed the words to bear, if this can be done witliout making a new con
tract for the parties.
4. When a contract is fairly susceptible of a construction that will sup
port it, such construction ought to be adopted.
5. It is not adding anything to a written contract to imply an obligation
to do what was intended at the time it was entered into, and which is essen
tial to its vitality and force.
6. When a party enters into an agr*ement which can only take
effect by the continuance of a certain existing state of circumstances, there
is un implied engagement on his part that he will not, of his own mere mo
tion, do anything to put an end to that state of circumstances under which
alone the agreement can be operative.
7. Where a contract was set out in haec verba in the complaint and the
answer only denied the authority of the person to execute it on the part of
another; held, that the execution of the contract is thereby admitted.

THE facts are suiciently stated in the opinion.
Messrs. BENEDICT & PHELPS, for appellant.
Messrs. ]3EowNE & PUTNAM, for appellee.
BEox, J.
The appellee brought suit in the court below
against the appellant upon a contract for the delivery of coal,

.
CnCD O;
alleging as a breach thereof, that on the 23rd day of January,

1878, while the contract was in force, the appellant without
cause or excuse discharged him, and refused to allow him to
deliver any coal under it.
The contract is as follows:
James F. Tierney to Boulder Valley Coal Company.
I do
hereby contract, and hold myself responsible for the safe and
prompt delivery of all the Boulder Valley Coal Oompanys

coal in the city of Denver, and to all parts of said city ot
Denver, and will hold myself responsible for all returns from
C. (_). D. orders, and all coal that may from time to time be
delivered in the wrong place, so as the Boulder Valley Coal
Company will be at no loss in any way connected with trans
porting of the said coal from their yard to the consumers of
said coal, and that myself and all my teamsters will be always
kind and accommodating to all who they may have any busi
ness with, for the sum of forty cents per ton, in large and
small quantities, with stable and yard privileges included, for
one year from June 1st, 1877, to June 1st, 1878.
JAMES F. Tn~:RNEY.
June 1st, 1877.
J. F. TIERNEY, EsQ.:
I will accept the above proposition for
and on the part of the Boulder Valley Coal Company.

By J0llN STEWART,
Superintendent.
One ground of defense set up in the appellauts answer was,
that no coal was sold and delivered in the city of Denver by
the appellantduring the period between January 23rd, 1878,

and June lst, 1878.
The trial resulted in a. verdict in favor of the appellee of

$200. He remitted $60, and judgment was entered on the
verdict for the sum of $140.
Appellees testimony showed that he commenced the delivery

of coal under the contract on the day of its date, and contin
ued to perform the agreement on his part until the 23rd day
r
584

of January, 1878, when he was informed that there was no

more coal for him to deliver. It likewise showed that the
stipulated consideration was paid him from time to time, by
the oicers of the coal company up to the latter date.

Counsel for the appellant offered to prove in defense, that
at no time after the 31st day of December, 1877, was there
any coal shipped by the defendants company from the com
panys mine (which is situated thirty or forty miles from the
city of Denver) to said city, nor was any coal delivered after
said time by said company in the city of Denver to consumers,
nor was there after that date, any coal belonging to said com
pany, in said city of Denver, subject to delivery by or under
the contract of said company, after the said 31st day of De
cember, 1877, but that on the contrary, all the coal mined at
said mine, by said company after that date, was by said oom
pany sold at the mouth of the pit to W. H. Pierce, who paid

for it at that point, and shipped said coal to the city of Den
ver, paid the freight, and handled and had the sole control and
disposition of said coal after the said 31st day of December,

A. D. 1877.
Objection being made, the offer was denied by the court.
This offer of testimony, and the ruling thereon, raises the prin
cipal question presented by this record, which is, how is the
contract to be construed in respect to the period of employ
ment?
That the object to be attained in the construction of a con

tract is to discover and e'ectuate the intentions of the parties,
and to this end that the court will adopt that construction
which will bring it as near to the actual meaning of the par
ties as the words they saw t to employ, when properly con
strued, will permit, are elementary principles of construction.
As a guide to a correct interpretation, the law also permits
the subject-matter of the contract, the situation of the parties
at the time of its execution, and all the surrounding facts and
circumstances to be taken into consideration.
In the case at bar the record discloses these facts: that on
DECEMBER TERM, 1881. '

"
585
and prior to June 1st, 187 7, the appellant was the owner of a
coal mine situated in the country several miles distant from
the city of Denver, and had been, and was then engaged in
the working of its mine, and of transporting coal therefrom
by railroad to its coal yard in the city, from which it retailed
and delivered the same to its customers in and about the city
Tierney, the appellee, had been engaged in the business or

employment of delivering coal, and had teams and wagons for
the purpose. Under these circumstances, Tierney made the
above proposal to Stewart, the superintendent of the coal com
pany, to deliver all its coal for the period of one year, at forty
cents per ton. The superintendent accepted this proposal on
the part of the company unconditionally. It thereupon became

the contract of both contracting parties (assuming the power
of the superintendent to make such a contract) to the same ex

tent and etfect as if drawn in the form of an agreement by
Tierney, of the one part. and the coal company of the other
part, and signed by both parties.
But counsel for the appellant think the judgment cannot be
sustained, for the reason, as they contend, that the company is
not guilty of any breach of the agreement. They say there is no

agreement on the part of the company, express or implied,
that it will continue the business of shipping coal from the
mine to its yard in Denver, and of retailing the same there
from to consumers in the city, for one year or for any time.
In answer to the suggestion of opposing counsel that the
agreement to continue the business is implied, they say We
do not deny that covenants may be implied, and we think there
is an implied covenant in this agreement, viz.: whatever coal
appellant should have for delivery to consumers in the city of

Denver during the year, the appellee should deliver and be
paid forty cents per ton.
.
This construction is clearly untenable. No necessity exists
to imply such a covenant as this. The stipulation of the con
tract is, that Tierney shall deliver all the 'companys coal, and
be paid therefor forty cents per ton.
A covenant cannot be
-580'

St. L. & D. L. &
Co. etc. v. Tierney.
implied where the same subject-matter is covered by an ex
press covenant. If counsel had said there was an implied

reservation in favor of the appellant, that it might discontinue
the business at any time, their meaning would have been better
expressed.
After due consideration of the language employed in this
agreement, and viewing the agreement in the light of sur
rounding circumstances, it seems very reasonable to infer that
both parties, at the time of entering into the contract, sup
posed that the business would continue for a year at least.
The com-pany owned the mine, and it was in successful opera
tion. The business of shipping and retailing coal was an
established business, and there is nothing in the record to show
that the project of selling the coal at the mine, or discontin
ning the Denver business had ever been contemplated.

Had the superintendent supposed that the business might be
discontinued before the expiration of the year, the presump
tion is, he would have qualied the written proposal before

accepting it. And had Tierney not intended to bind the com
pany as well as himself, to performance for a full year, it is
highly probable that the proposition would have been differ
ently expressed.
Mr. Parsons says:
A party will be held to that meaning
which he knew the other party supposed the words to bear, if

this can be done without makiuga new contract for the parties.
2 Pars. Cont. p. 499. The superintendent of the appellant

must have known from the words of the proposal, that Tierney
supposed it would become obligatory upon both parties when
accepted for the period stated, the one to furnish coal for deliv
ery, the other to deliver it.
Such, therefore, being the evident understanding and inten
tion of the parties, as imported by the language of their agree

ment, we are of opinion that the law implies a covenant on the
part of the coal company, in the absence of an expressstipn
lation, to continue the business for the period of time specied.
This is the only construction which etfectuates the intention
of the parties, or gives force and effect to their agreement.
587
St. L. & D. L. & M.'Co. etc. v. Tierney.
Tierney had bound himself to serve the appellant for a deli

nite period of time, and of course obligated himself to provide
everything necessary to the performance of the service which
he was to render. Had he failed to provide necessary teams,
wagons, and drivers to deliver all coal sold from the yard, or
had he accepted _other employment for his teams, which ren

dered him unable to ll all orders for coal during any portion
of the year, had the company seen t to continue the Denver

business so long, would he not have been liable under the
contract for damages occasioned by the breach? If this be
true, must not a correlative obligation have rested upon the
appellant; that is, must we not imply a covenant that it would
continue in good faith th_e business which constituted the

basis of the contract? If it be said that Tierney was bound in
manner stated, but that the coal company was left free to ter
minate the engagement at its option, by a voluntary discou
tinuance of the business which furnished the employment con
tracted for, leaving the contractor, as in the present instance,
with teams and drivers upon his hands in mid-winter, when it

was impossible to nd employment for them, then the contract
was unilateral. This would render it void,_for want of mu
tuality. But the contract is fairly susceptible of a construc
tion which will support it. This construction ought therefore

to be adopted, rather than one which would defeat it. 1 Chitty
Cont. pp. 111, 112.
It is not adding anything to a written contract to imply an
obligation to do what was intended at the time it was entered
into, and which is essential to its vitality and force. The neces
sary inference, then, is, that the appellant obligated itself to fur
nish appellee an opportunity to perform the contract on his
part. This construction admits of the qualication that if the
business had been suspended by acts or circumstances over which
the company had no control, as by the exhausting of the coal
veins, re in the mine, or the ooding of the mine, the appel
lant would not be liable. But where the breach is occasioned
by the voluntary act of the party, the rule is otherwise.
588
SUPREME Comm. or COLORADO.

It is said that where a party enters into an agreement which

can only take e'ect by the continuance of a certain existing
state of circumstances, there is an implied engagement on his

part that he will not, of his own mere motion, do anything to
put an end to that state of circumstances under which alone
the agreement can be operative. 1 Add. Cont. Sec. 236; 1
Chitty Cont. p. 89; Stirling v. Maitland, 5 Best & Smith,
p. 8-10.
The state of facts proposed to be proved by appellant on
the trial, showed a voluntary discontinuance of the business
on the part of-the company, by a sale at the mouth of the pit
of all the coal mined. The facts constituted no defense to the
action, and were properly rejected.
In support of the foregoing views, we cite the following
authorities: Stirling v. Mlcitlaml, 5 Best & Smith, p. 840.

Whittle v. Frankland, 2 Ib. p. 49; Mel/ttire v. Belclrer, 14
Common Bench, (N. S.) p. 653; Emmons v. .Elde1't0n, 4 House
of Lords Cases, p. 624;
Black v. Woodrow. 39 Md. 194;
Allaman v. The 1lla_z/0r,d:c. 43 Barber, 33.

In regard to the other errors assigned, we are of opinion
that no error occurred of sufficient importance to justify a

reversal.
As to the authority of Stewart, the superintendent, to bind
the company, we are disposed to agree with counsel for appel
lee that it is too late to say that the company had no knowl
edge of the contract. Tierney continued to execute it in
accordance with its provisions for a period of more than seven
months, during which time the ofcers of the company also.
performed it by permitting Tierney to deliver all the com-\\
panys coal, and by paying him regularly the stipulated com
pensation. If authority on the part of the superintendent to
make such a contract for the company was Wanting, the long
time during which it was executed by both parties, and the
l
I
\
.
\\
manner of its execution on the part of both, furnish strong

grounds to persume a ratication.
As to the introduction of a copy of the contract in evidence
Daosmnna TERM, 1881.
'
589
Crisman v. Heiderer.
instead of the original, it is suicient to say that no issue was
tendered by the pleadings as to the execution of this contract.

It was set out in luzec verba in the complaint and the answer
only denies the authority of the superintendent to execute it
on the part of the company. That he did execute the contract

declared upon is therefore admitted.
Finding no substantial error, the judgment will be affirmed.
Judgment air-med.
Chief Justice Enauar did not sit in this case.
Cmsmau v. Hsrnuaua.
-1. That the subject matter of a cross-bill is germane to the matters set up
in the original bill, is all the law requires.
2.
It is not to be expected that matters of defense, or matters entitling a
defendant to affirmative relief, will be fully stated in the original bill; the
limit of the requirement is that the allegations of the cross-bill shall grow
out of and be connected with the subject matter of the original bill.
3. When airmative relief is sought by a. cross-bill, it is not to this extent
a pure cross-bill, but partakes of the nature of an original bill, seeking further
aid of the court beyond the purposes of defense. The relief sought must be
equitable relief, or the bill will be held bad on demurrer.

4. It is not essential to the granting of equitable relief that irreparable
injury shall already have resulted from the acts complained of, it is only re
quired that the damage is threatened or impending, and that a clear neces
sity be shown for affording immediate protection to some right or interest
which would otherwise be seriously injured or impaired.
5. The mere allegation that irrepamble injury will result unless protection
is extended is not sufficient, but facts must be stated, that the court may see
how and why it would result, and that the apprehension of irreparable mis
chief is well founded.
6. While one may have the right to enter the bed of a stream above his
ditch, and to remove obstructions which may have changed or obstructed the
course of the current so as to prevent the water from entering his ditch, and
have implied authority to do all that should become necessary to secure the
benet of the appropriation of the water, and may acquire an easement in
59O

C:-isman v. Heiderer.
the adjoining lands. yet the right thus acquired, must be held to the narrow
est limits compatible with the enjoyment of the principal easement. which is
the right to the use of the water. The most reasonable mode of effecting the
object must be adopted. The controlling principle is, that the water shall be
div rted in such a. manner as not to damage or seriously endanger the lands
of owners upon the margin or banks of the stream.
7. Where a demurrer to a. cross-bill in overruled, and the plaintitf elects
to abide by his demurrer, aflirmative relief may be awarded on the cross-bill.
Appealfrom District Court of Arapahoe C'0unt_1/.

Tun facts are snfciently stated in the opinion of the court.
Mr. J. Q. Cnaanns, for appellant.
Messrs. JAB. A. Lowam, E. P. HARMAN and V. D. MARK
HAM, for appellee.
Bscx, J.
After a careful examination of the voluminous
record in this case, and a thorough review and consideration

of the arguments ofcounsel, we have arrived at the conclusion
that the decree of the court below is in the main correct; one
of its provisions requires modication in order to conform to
equitable principles, but we are satised that with this modi
cation, the decree entered will achninister substantial justice
to both parties to the controversy.
Counsel for the appellant argues at great length, that the

court erred in overruling the demurrer to the cross-bill of the
appellee, who was defendant below; two principal objections
are urged against the cross-bill, one that the matters set up
in it are not matters in question in the original bill, the other
that the relief sought is not equitable relief.
It is a suflicient answer to the rst objection that the sub
ject-matter of the cross-bill is germane to the matters set up in

the original bill, which is all the law requires. The original
bill alleges in substance that the defendant, Heiderer, had
placed obstructions in the channel of the South Platte river,
south of the Larimer street bridge in the city of Denver, and

in the vicinity of the mouth or head of complaina.nts mill
..}91
ditch; that defendant was then engaged in constructing a per

manent dam across the channel above and south of the bridge
for the purpose of wholly diverting the water from the western
bank of the river, where it was accustomed to flow when the
ditch was made, towards the eastern bank, and that if the ob
struction was completed it would prevent the water from enter

ing the complainant's ditch and would deprive him of motive
power to run his mill.
It alleges that the right-of-way for the ditch had been
obtained by condemnation under the statute, and that the
owners thereof were prior appropriators of the water and enti
tled to have it flow into said ditch without obstruction, etc.;
that the obstructions complained of were then sufficiently com

pleted to stop the flow of water in the channel of the river, and
that the water was so diverted towards the eastern bank as to
deprive the complainant of a sufficient quantity of water to

operate his mill, and it had stopped running in consequence;
it alleges that the mill, when supplied with water, was making
about one hundred sacks of flour per day, and yielding a profit
of about fifty dollars per day; that it had no other motive
power to propel its machinery, and that if the acts of the de
fendant were permitted, the value of the property would be
destroyed. An injunction was prayed, and that defendant be
ordered to remove the obstructions.
The answer sets up that defendant is owner and in possession
of a lot of ground and premises situate immediately south of

the Larimer street bridge, which, as described, extends from
the center of the bridge on the south side, up the channel of
the river, a distance of one hundred and eighty-four feet, and
from this east line westward, several feet beyond the western
bank of the river; it avers that the right of way for the ditch
was obtained only to a point thirty feet below or north of the
bridge where the headgate was originally located, and that
the water was appropriated at that point; denies any appro
priation of the water at the point of diversion complained of
south of the bridge, or that the right of way had ever been ac
592

quired to any point south of the bridge by condemnation or

otherwise; it then avers that after the completion of the ditch,
the complainant had unlawfully extended it up the western

bank of the river over the premises now owned by the defend
ant, to a point about three hundred feet south of the bridge,
and thereafter had received the water into the ditch at this
point; that for the purpose of diverting the Water into his
ditch as unlawfully extended, complainant had placed dams
and obstructions in the bed of the river, upon and beyond the
premises of the defendant, to a point ve hundred feet south
of the bridge; that these dams and obstructions prevent the
water from owing in its natural channel towards the eastern

haul: of the river, where it would otherwise ow, and where it
did ow when the ditch was made, and divert it towards the
western bank, which is unprotected, and liable to overow and
damage.
The answer sets out at some length the facts concerning the
liability of the river to annual oods or freshets, when it over
flows its banks at and above det'endants premises, and threat
ens to cut new channels beyond the western bank; describes
the effect of the ood of May, 1876, at this point, the cutting
away of the west bank of the river ust above his premises in
consequence of these obstructions, and avers that if a similar
freshet occurs, the river Wlll break through the western bank
and form a new channel through his property, thus producing
great and lasting injury. The answer claims that the obstruc
tions placed in the river by the defendant were merely to coun
teract, as far ashe could, the effect of the dams, embankments,
etc., constructed by the complainant, and to protect his prop

erty; that they turn the water eastward, from the western bank,
into the channel where it was accustomed to ow when the
(lrisman ditch was constructed, leaving the water accessible to
the ditch at the point where the complainant was and is enti
tled to receive it, viz.: at the Larimer street bridge.
The cross-bill sets out the same facts, averring the same
danger from freshets in consequence of the obstructions placed
59.3
Crisman v. Heiderer
in the channel of the stream by Crisman; it prays that Cris

man may be decreed to remove all of the dams, embank
ments and other obstructions of any kind whatever placed by

him south of the Larimer street bridge, and for other and fur
ther relief.
It appears therefore, the subject-matter of the cross-bill is

not foreign to the subject of the original bill; it is the same sub
ject-matter, but the cross-bill goes further, and like the answer,
states additional facts relating to the controversy, for the purpose
of justifying the conduct of the appellee, and to show a right
to affirmative relief against the acts of the appellant. This is
not only admissible, but in most if not in all cases, absolutely
necessary to be done in drafting a cross-bill.
It is not to be expected that matters of defense or matters
entitling a defendant to affirmative relief will be fully stated in
the original bill; the limit of the requirement is that the alle
gations of the cross-bill shall grow out of and be connected
with the subject-matter of the original bill. Heard v. Case,
32 Ill. 45.
The allegations respecting the extension of the ditch by

Crisman are objected to as being new matter and not in any
manner referred to in the original bill; but that bill is drafted
so as to claim a right to receive the water into the ditch above
the bridge and in the vicinity of the obstructions therein com
plained of; it is therefore germane to the subject-matter to
show that the right thus claimed is derived from an unauthor
ized extension of the ditch; it is equally proper to show, by
the averments of the cross-bill, that for the purpose of divert
ing the water into the ditch, as extended, the complainant
had turned the current at that point out of its natural channel
by dams and embankments; also to allege and show by a state
ment of facts, that these acts exposed the property of Heiderer
to great damage.
We think the cross-bill comes clearly within the rule and is
not obnoxious to the first objection.
38
594
SUPREME COURT or Conoaano.

The next objection to the cross-bill is, that the relief sought
is not equitable relief.
The authorities on this question hold, that where airmative
relief is sought by a. cross-bill, it is not to this extent a pure
cross-bill, but partakes of the nature of an original bill seek
ing further aid of the court beyond the purposes of defense.
The rule laid down is, that the airmative relief sought must
he equitable relief, or the bill will be held bad on demurrer.
Storys Eq. Pl. Secs. 398, 629; 2 Daniels, Oh. Pr. p. 15~t9, note
3; Tobey v. Foreman, 79 Ills. 489.
It is observable that the case made by the cross-bill for af
rmative relief is very similar in character to the case made
by the original bill, the injuries complained of in both bills
are trespasses, and similar relief is sought by both.
But it is objected that the cross-bill does not make out a
case of irreparable injury.
'
It is not essential to the granting of equitable relief that ir

reparable injury shall already have resulted from the acts com
plained of; it is only required that the damage is threatening
or impending, and that a clear necessity be shown for a'orrl
ing immediate protection to some right or interest which

would otherwise be seriously injured or impaired. High on
Injunctions, Secs. 10, 13.
The mere allegation that irreparable injury will result un

less protection is extended, is not suicient, but facts must be
stated that the court may see how and why it would re
sult, and that the apprehensions of irreparable mischief are
well founded. Uarlisle v. Stevenson, 3 Md. Oh. Decisions, 505;
Walclron v. Marsh, 5 Cal. 119.
The cross-bill comes within this rule, all of the facts upon
which the appellee bases his fears of injury and damage, being
set out in the bill. We have duly considered these facts and
are of opinion that the fears of the appellee were well founded
and that the damage apprehended was of such a character as to
warrant equitable interposition.
_
It is also objected that there is no averment in the cross-hill
7%
"_
Ll
595
that appellee owned the premises now claimed by him at the

time of the extension of the ditch, and it is insisted that he
\vas not injured thereby, and therefore is not entitled to relief
on account thereof. The cross-bill does allege title and posses
sion in the appellee at and before the ling of the original bill
of complaint; it also alleges, as we have seen, that the exten
sion of the ditch over this land was wholly without authority,
and that no license or right-of-way has since been acquired
therefor.
The act of extension stands, therefore, as a trespass
upon this property, and the land having subsequently been

conveyed to the appellee, the appellant is in no position to claim
an advantage from his trespasses; besides, the appellee having
succeeded to the title, has a right on the face of his bill to have
the obstructions which threaten the destruction of his estate
removed.
V
For the reasons assigned, we perceive no error in the over
ruling of the demurrer.
We now come to the objections to the decree of the court
below, which are in effect, that it was unauthorized in so far
as it gave relief to the appellee, and that it did not award ad

equate relief to the appellant.
The questions arising under these assignments of error will

not be discussed in extenso, nor will we review in this opinion
the great mass of testimony taken and returned in the record,
although the same has received thoughtful consideration; we
will do little more than state the conclusions at which we have
arrived.
The record satises us, as it did the court below, that both
parties have been in the wrong; the appellee, in placing
obstructions in the bed of the river, the appellant in extending
the ditch over and beyond the property now owned by the
appellee, and in making the permanent embankment in the
channel which formed the east bank of the ditch as extended;
the appellant was also wrong in diverting the water toward the
Western bank of the river by a dam across the channel higher
up the stream. No authority or license is shown for these
596

acts, and that they seriously imperiled the adjoining premises

on the west bank of the river we have no doubt.
It does not appear that the ditch could not have been sup
plied with water in the vicinity of its headgate below the

bridge; the entire current of the river has continued to ow
under this bridge, notwithstanding the changes which may
have occurred in the course of the channel above, by the de
posit of sediment and other material caused by the oods re
ferred to. But ifa sufficient quantity of water to drive the
mill could not have been diverted into the ditch at this point
without damage to adjoining property, the extension should
have been made in a legal manner. This matter is now pro
vided for and regulated by statute. _ Laws 1881, p. 161.
The appellant had the right to enter the bed of the stream
above the ditch and to remove sediment or obstructions which
may have changed or obstructed the course of the current so
as to prevent it from entering his ditch. The appropriation
of the water at the point named, carried with it an implied au
thority to do all that should becmne necessary to secure the

benet of the appropriation; to this extent the appropriator
acquired an easement in the adjoining lands; but the right

thus acquired is one which is held to the narrowest limits
compatible with the enjoyment of the principal easement,
which is the right to the use of the water. The most reasona
ble mode of effecting the object must be adopted, and it must
be done in such a manner as to occasion as little damage as
possible to the owner of the adjoining premises. The neces
sity of obtaining water to run the mill did not justify the ap
pellant in arbitrarily adopting a method which was calcu
lated to greatly damage the property of others; it has been
well said that the necessity of one n1ans business is not to he
made the standard of another man's rights; the great maxim
of the law sic utero tuo ut alienum non laadas, applies

with as much force to the enjoyment of water rights as to
rights of any other description: Angeli on Watercolll-ses, Secs.
1-11, 142, 143, 163, and notes: Prescott v. Willitu/zs, 5 Met.
429.
597
The decree, therefore, in so far as it permits Crisman to

enter the premises in the bed of the stream, south of the
Larimer street bridge, for the purpose of keeping the channel
clear of sediment and other material tending to divert it from
supplying the ditch, is correct. It is correct likewise in order
ing him to remove the dams and other obstructions placed by
him in the bed of the river, south of the bridge. If these
obstructions have been swept away by freshets, aa suggested,
of course this part of the decree is satised.
That portion of the decree, however, which affords affirma
tive relief to the appellee is, we think, too broad.
It enjoins
the appellant from making, constructing or building any

obstruction in the bed of the river at, under or south of the
Larimer street bridge, which shall raise the waters of said
river above their natural ow, either at low or high water,
south of said Larimer street bridge, and adjoining the lands
of said defendant Heiderer, as described in his said cross-bill.
It is not certain that a sutcient quantity of water can be

diverted into the ditch in the vicinity of its headgate without
placing at this point some obstruction in the channel, as a
wing-dam, for instance, which may have the effect to raise the
waters above their natural height on or adjoining the premises
of Heiderer. Such a rule is inequitable and would work hard
ship.
A portion of Heiderers land is in the bed of the stream. It
would be unreasonable to say that the water should not be
raised upon this portion of his premises at low water, or that
the volume along the bank should not be increased if neces
sary to get the water into the ditch, and it could be done with
out damage to the appellee.
The controlling principle is, that the water shall be diverted
in such a manner as not to damage or seriously endanger the
lands of owners upon the margin or banks of the stream.
As to whether the ditch has been properly constructed, or

constructed to the proper point upon the stream, where the
water can be diverted into it without producing such mis
598

Givens v. Wheeler, Adm'r, etc.
chief, are questions of fact to be determined in each case as it

may arise.
The provision in this decree should enjoin the appellant
from making, constructing or building any obstruction in the
bed of the river in the vicinity of the headgate of said mill;
ditch as originally located, which shall damage or seriously en-
danger the lands and property of the defendant Heiderer.
As regards the appellees title, it is not in dispute, nor is it
an issue in the case. No one is here claiming adversely to
him. The cross-bill alleges title and possession, and the de
murrer admits the allegation to be truo. The appellant hav
ing elected to abide by his demurrer, the court had jurisdic
tion to award airmative relief upon the cross-bill. High on
Injunctions, Secs. 461; 516.
The cause is remanded with instructions to the district
court to modify the decree in conforinity with this opinion.

The costs
appellee.
. of the appeal will be taxed to the
Cause
remanded. i
GIVENS v. VHEELER, Administrator of

of Van Denberg.
the
estate
Upon leave to amend, the plaintiff may not state in his complaint an en
tirely new cause of action.
Error to Diistrjct Court of El Iaso Count-_2/.

THE complaint in this case substantially alleges that defend
ant, May 1st, 1880, sold and conveyed to plaintiff a certain
ranch, with all the improvements thereon, plaintiff paying
defendant therefor $1,100.00.
That defendant covenanted in
his deed to plaintiff that he had good right and full power to
sell the same and was well seized thereof as of good, sure and
DECEMBER TERM, 1881,
599
Givens v. Wheeler, Adm'r, etc.
absolute title. The complaint also alleges that at the same

time defendant was not well seized as of sure and good title,
nor did he then, before or since have such right or power, and
that defendant did not have any right or title to the same,
either legal or equitable.
The answer admits the conveyance as alleged, and denies
that at the time of making said conveyance defendant had no
title or right to convey said land. Defendant pleads that he
had made final payment to the United States for the tract of
land described in his deed, and transferred to plaintiff his
receipt therefor containing description of land same as in the
deed.
The plaintiff in his reply alleges, that defendant told him,

before he purchased, that the fractional parts of Section 29,
mentioned in said receipt, covered the ranch on which he had

made improvements, which was the land he traded for. That
the ranch he purchased was not covered by said fractional

parts of Section 29, and that they covered a different tract of
land, that was worthless and without improvements, that he
neither bought nor wished to buy. That he traded for and
paid for one tract of land, and defendant conveyed to him an
other.
Plaintiff alleges in his amended complaint, that while they

were treating about the sale of the ranch, defendant informed
him that the same was covered by the fractions of Section 29,
mentioned in said receipt, and relying on his statements, he
accepted a deed for the ranch containing a recital of same
fractions, and paid said sum of money as the price of the
ranch. That the ranch is not covered or embraced by the

recitals of the deed, which covers another and different tract
from the one he desired and bought, and which is worthless.

The replication was stricken out upon motion in the dis
trict court, as well also the amended complaint, and judgment
of dismissal finally entered. Upon these matters error is as
signed in this court.
-
Mr. JoHN B. CocIIRAN, for plaintiff in error.
600
Givens v. Wheeler, Admr. etc.
Mr. WILLIAM HARRISON, for defendant in error.

ELBERT, C. J.
The amended complaint in this case was bad.
in that it stated an entirely new cause of action. This is not

allowable either at common law or under the Code. Bliss
Plead. Sec. 429, and cases cited.
The replication was vicious for the same reason.
The judg
ment of the court below is ainned with costs.

Ajrmed.
INDEX.
ABANDONMENT.
1. Abandonment is a matter of intention. and operates instanter.
\Vherea miner gives u his claim and goes away without any intention
of re-possessing it, an ahandonment takes place, and it is opento location
by the rst comer.
No subsequent sale by the former locator, after other
l'lgl1llZS2(;l58.V6 intervened, will convey any right or title.

et a .
Derry v. Ross
ACCEPTANCE.
l_. The holder of a check drawn against funds, cannot maintain an

action in his own name against the drawee who refuses payment. regard
less of the question of acceptance. Colorado Nat. Bli: v. Boettchw-,
185.
2. To warrant the inference of acceptance from conduct, it would
seem that the circumstances must clearly indicate such an intention on
the part of the drawee. Ib.
3.
Mere detention does not constitute an implied acceptance. and a
conditional acceptance is not enforceable until complete fullment of the

condition. Ib.
ACKNOWLEDGMENT.
1. Without an acknowledgment or memorandum. a chattel mortgage
mayube valid as between the parties, but it has no effect upon the rights
of t "rd parties acting in goo faith.
Crane et al. v. Chandler, 21.
AGENT.
1. Under the Code (Sec. 37), service upon the agent of the receivers
of a foreign corporation, held sufficient. Gaiiebin v. Ih1.-Ian, 83.
2. The rule is that whenever a party undertakes to do an act as the
agent of another, if he does not possess any authority from the princi
pal therefor, or if he exceeds the authority delegated to him, he will be
personally responsible to the person with whom he is dealing on

account of his principal. Charles v. Eshleman et al. 107.
3. Ratication can only be effectual between the parties when the
act is done by the agent avowedly for or on account of the principal.
and not when it is done for or on account of the agent. Ib.
4. If an agent act for both parties in the same transaction. he can
not recover commissions from either, unless the parties knew and
assented to his acting for both. Nor can an agent become the pur
chaser without the knowledge and assent of the seller, nor if he be
employt1=.'d4to purchase can he be himself the seller.

Frilz.
Fiimerty et al. v.
7 .
5. The general rule is, that the duties of an agent continue, and
(601)
o02
SUPREME Counr or Conossno.
AGENTCont1'nued.
.
commissions are not due until he has effected a bargain and sale, by a
contract which is mutually binding on vendor and va-ndee. But whui
the agent produces a purchaser acceptable to the owner and able and
willing to purchase on terms satisfactory to the owner, the agent has per
forms 1 his duty and, if through the fault of the owner. the sale is not
consummated, the agent may recover his commissions. Ib.
6. Where
to sell, negotiates
such and
conditional
be
tween
himself an
andaieisnt principal,
the execution
deliverysale
of as
a title
bond to the purchaser or obligee, may be regarded as a sale of the prop
erty, during the option; and the agent may negotiate a. sale of the
same property for the obligee, without forfeiting his commissions. But
if the agent, concealing from the obligee his agency to sell, induce the
latter to undertake, in connection with himself, the lpurchase of the prop
erty, such concealment being obnoxious to the ru es of ublic policy,
will 8.V0l(}ll,1iB commissions, whether the seller knew of the dbuble relation
or not.
AUIREED STATE OF FACTS:
See EXCEPTIONS.
A\lEI\'DlV[EN'RS.
1. Deciencies in a record cannot be supplied in the Supreme Court by
ex: parts attidavits. When an amendment is desired to a sheriffs return
appli5it.ion must be made in the court below. Bar-ndollar et al v. Pat
ton,
2. \Nhen aparty declines to avail himself of the opportunity offered

in the court below to amend his pleadings upon their being adjudged
insufficient, he brings his cause into this court upon his own judgment
and at his own peril. The Colorado Springs C0. v. Hopkins, 338.
3. After a return of the ndings of a jury upon certain facts submitted,
the defendant asked leave to amend his answer upon a point submitted
and already covered by the answer.
Held, that to have allowed such
an amendment would have been a very questionable exercise of discre

tion, and that the court did not err in refusing to tolerate such an abuse
of the rules of practice. Sears v. Collins, 492.
4. Upon leave to amend, the plaintilf may not state in his complaint
an entirely new cause of action. Givens v. Wheeler 598.
APPEAL.
1. In taking an appeal from an order denying a motion for a new
trial, under section
of the Code, notice of the appeal must be given
within sixty days after the making of the order. Brown v. W1'llO|.lghI)_l/1 1.
2. An intermediate order" within the meaning of section 346 of the
Code, isan order from which no appeal can be taken, and which, but for
the provision of the Code, could not be reviewed. Ib.
3. Where no appeal is taken from an order denying a motion for a.
new trial, the court will not examine the evidence with a view to de
termine whether it is suicient to support the judgment. But any error

otlaw in admitting or excluding evi ence, ma be reviewed on appeal
from the judgment, if made part of the record by bill of exceptions or
statement on appeal. Ib.
4. An appea. under section 338 of the Code lies only from nal judg
ments, and no authority is found there for taking an appeal from either
an order denying a continuance, or from an order settmg aside a ver

dict.
Lutterell et al. v. Swisher, 54.
5. In appeal cases, when special pleading is not allowed, it is proper

for the respondentto apply to dismiss the appeal if it is not brought with
INDEX.
603
APPEALContinued.
in the time limited by the statute, or if the right to appeal is barred in

any other manner. Willoughby v. George, 80.
6. Where the right to appeal is barred by lapse of time, the right to
lead th;#" is a vested right, and beyond the peril of subsequent legis
ation.
7. The statute (Act of 1879, Sec. 38 rage 229), in so far as it allows a

writ of error to a judgment in respect to which an appeal was barred
prior to its passage, is retrospective in its operation, and not only within
the onstitutional prohibition, but within the prohibition of fundamental
principles governing retrospective laws. . Ib.

8. The bar arising from the lapse of time within which an appeal can
be taken is a # right, and beyond the reach of subsequent legisla
tion.
Bond et al. v. First National B'k of Santa Fe, 83.
9. A joint appeal by all the defendants, allowed upon the condition

of filing a joint bond, must be prosecuted by all. Fuller et al. v. Sucan
River Placer Co. 123.
10. The provisions of the R. S., establishing the mode of procedure in

taking and prosecuting appeals from judgments of justices of the
peace, remain in force, but under the acts of March 14, 1877, such ap
peals lie to the county court instead of the district court. Wike et al. v.
Campbell, 126.
11. Under the Code (section
#. an
appeal to this court on a judg
ment in the district court, rendered on appeal from the county court, is
barred after ninety days from the rendition of the judgment. W' the
bar attaches, it cannot be disturbed by subsequent legislation. Hewitt v.
Colorado Springs Co. 184.
12. Where a motion was made and sustained to vacate a judgment

rendered at the preceding term of the district court, held, that however
erroneous the order vacating the judgment, it was not an order upon
which an appeal would lie, being in no sense a final judgment. Higgins
v. Brown et al. 345.
13. Objections to pleading not made in the court below will not be
noticed on appeal.
Fassett et al. v. Mulock, 466.
14. Errors occurring in a judgment other than that appealed from,

cannot be inquired into on appeal. Brown v. The State, 496.
ASSIGNMENT.
1. The assignment by the obligee or his assignee of a bond for the con
veyance of real estate. comes clearly within the provisions of section 1,
Rev. Stats. p. 111 (1868), and unless recorded will not take effect as
" or encumbrancers without notice.
against subsequent bona fide

McFarran v. Knox et al., 217.
ASSIGNMENT OF ERRORS:
1. The rules of the Supreme Court require plaintiffs in error and appel
lants to assign errors at the time of filing the transcr.pt of the record.
Haas et al. v. Board County Commissioners, 125.
2. Where plaintiff failed to assign error during vacation under an or

der of court, and defendant filed a motion to dismiss for non-compliance
with the order, no delay in the submission of the cause having occurred,
the motion to dismiss was denied.
Home et al. v. Duff et al. 344.
ASSIGNOR :
See NEGOTIABLE INSTRUMENTS, 3.

ATTACHMENT:
1. The return of an execution unsatisfied" by order of the rlont",

after a delay of nine months after levy, ulus. be taken as a re...se of
604
SUPREME COURT 011- COLORADO.
ATT_ACHMENTCont|'n ued.
the lien, acquired not only by the execution, but in case of attachment, of
the attachment lien also, so far at least as respects any junior liens.
Spcclnmn v. Chxrec, 247.
2. The lien of attachment becomes merged in the judgment, and the
only effect of the attachment thereafter, is to preserve the priority of the
lien, and this priority is maintained and enforced by issuance of execu
tion. It the pla.intit'I' neglects to issue execution and loses his judg
ment lien thereby, the attachment falls with it. The same degree of dil
igence is required to preserve the priority of lien as is required in cases
0 execution issued upon ordinary judgments without attachment. The
proper oioe and use of an execution, is to enforce the collection of a
debt and not to create a security. Ib.
3. A direction by the execution creditor not to levy or not to sell. is
primafacie evidence that the writ is being used as a mere security.
111.
4. In the absence of any statutory rule, and in the absence of fraud

or malades on the part of the judgment creditor, held, that one year
is a reasonable time within which to issue execution after judgment ob

tained, where personal property has been attached. Ib.
5. Where the same oicer holds more than one writ, differing in pri
ority, he may sell under the junior, and the property can not be taken under
the senior writ from the purchaser; the roceeds, however, must be ap
plied to the senior writ. But to pass titi)e to the purchaser in such case,
the sale must be fully consummated, the money paid and the property
delivered. Ib.
See EXEMPTION.
A'ITORNEY-GENERAL:
1. Section 1103 of the General Laws. limits the duties of the At..0mcy
neral to State cases instituted or pending in the Supreme Court of the
gtnte. His duty to appear in State cases in inferior courts, would be
obligatory only when required to do so by the Governor or General As
semb(l%. Atchison T. di" S. F. R. R. C0. v. The People -ex rel. Att'_:/
g G.
2. It . is the duty of the district attorneys to apgear in the district
courts of their respective districts on behalf of the tate.
Sec. 895; Code, Sec. 260.) Ib.
(Gen. Laws,
BANKER:
By the law merchant the banker has a general lieu on all securities
deposited with him by a customer, for his general balance, unless there
is a, contract, ex ress or implied, inconsistent with such lien, and of this
gle court will taiie judicial notice.
Wyman v. Colorado National Bank,
BENEFITS:
See EMINENT DOMAIN, 2.
BILL OF EXCEPTIONS:
1. Attesting and proving a. bill of exce tions b aidavits is a method
of authentication that can not be rr-sorted)to in the absence of neglect
or ret'usa.l" of the judge to allow, sign and seal the bill. Meyer at al.
v. Bin!-leman, 133.
2. If appellants ncgligently postpone all action until the last days of

the time limited for signing a bill of exceptions, they can not ask to be
relieved from the hardship of a temporary absence of the judge from
his district. lb.
INDEX.
605
hll L OF EXCEPTIONSConti'nued.
3. The ndings of the court are no more a judgment than the verdict
of a. jury in a. cause tried by a jury; and a statement in a bill of excep
tions that ajudgment was rendered, cannot supply the place of the judg
ment itself. Alvord et al. v. McGaiighe_i/, 244.
BO\'D:
1. In debt on a bond, previous demand for payment is unnecessary.
Board of Co. Com. etc. v. Sloan et al. 38.
2. The same matters litigated in a replevin suit may not be re-exam
i)nO%d in a suit upon a. replevin bond. Colorado Springs Co. v. Hopkins,
3. The assignment by the obligee or his assignee of a bond for the
conveyance of real estate. comes clearly within the provisions of Section
1, Rev. Stats. p. 111 (1868), and unless recorded will not take effect
as against subsequent bona rle purchasers or encumbranceis without
notice. McFarran v. Knox et al. 217.
4. The execution and delivery of a bond conditioned to convey a min
ing claim upon payment or deposit of a. certain sum within a sriven time.
the bond not bemg signed by the obligee, containing no clause granting
him possession during the option, and having no consideration expressed
for the option given: Held, that until acceptance by the obliges or the
performance of some act equivalent to an election to purchase under the
terms prescribed, such a bond is a. nudum pactum, and subject to revo
cation; also. that the taking possession under such abond, and making
improvements without objection from the obligor. would not render the
bond irrevocable; nor could such entry be considered equivalent to an
election to purchase, nor be construed into a performance. Gordan et
al. v. Darnell, 302.
BREACH OF COVENANT:
See COVENANT, 2.
CARRIER:
1. The truth of an averment of ownersliip in the consignor, in an
action against a carrier is to be determined y the evidence upon issue
made.
Martin v. McLaughlin, 387.
2. Whetiher the consignor or consignee is entitled to an action against

the carrier upon a liability incurred in the shipment of goods deplencls as
well upon the terms of the contract as to purchase or order and s ipnient
between the consignor and consignee, an the contract with the carrier,
as upon the general rule of law. Ib.
3. A carrier to be liable for injury to a passenger, must have been
guilty of negligence which was the proximate cause of the injury com
plained of. McClelland_et al. v. Burns, 390.
CATTLE :
The general law of this State permits the owners of cattle to allow
them to ranqe at will, and in the absence of local acts, the owners of
crops can on y recover damages done thereto by the trcspasses of cattle,

when the same are, at the time of the trespass, inclosed by good and
suicient fences. Morris v. Fraker, 425.
Ll RTIFICATE OF INCORPORATION:
See CORPORATIONS.
(.CR'l'IFICATE OF LOCATION:
1. Arecorded certicate of location is a statutory writing infecting
606
Snrnsnn Connr or COLORADO.
CFRTIFICATE OF LOCATION--Continued.
realty, being in part the basis of the miner's right of exclusive posses
sion and enjoyment " of his mining location, granted by the act of Con
gress of May 10, 1872. The purpose of description is to identify the claim
with reasonable certainty. Pollard v. Sliively et al.
'
2. The courses and distances of a. survey must yield to its monuments.
whether natural or articial. Ib.
3. Whileastump, hewed and marked, might he adopted as a location
post, the descripitive survey should give both its real and assigned chair
acter. When t e callin a location certicate is for a post," parol testi
mony is inadmissible to show that while a post " is ca. led for, a
stump," was in fact established as a comer. I b.
4. T e general mle that parol evidence cannot be admitted to contra.

dict or control the language of a deed, but that latent anibigiiities may he
explained by such evidence, held, applicable to a. location certicate.
Ib.
5. The rule is that where monuments are relied upon to control COL1l.~LS
and distances, they must be found as called for.
Ib.
6. Marking the boundaries of a surface claim as required by the statute,

serves a double urpose; it 0 crates to determine the rights of the claim
ant as between himself and the Government, and to notify third persons
ofhis ri,<_,rlits.
Ib.
7. Where a variation exists between the monuments and the courses

and distances of the location certicate, it is necessary, pyior to the
patent, for the locator, as against subsequent locatoni, to eep up his
monuments to an extent that gives fair and reasonable notice. Ib.
8. The requirements of the statute that the side osts be placed in the
centtey of pigs side lines is satised if they be placed substantially in the
csn r.
.
9. The marking of the surface boundaries with posts is so far impera
tive under the statute as to re uire that the boundaries may he readily
traced by them. The notice which the statute contemplates and seeks
by andltgrough them, may not be substanti-a.lly irnpaired by a.ny_omis~
sion.
.
CHARTER:
See CORPORATIONS. 3, 4.
CHATTEL MORTGAGE:
'
1. The chattel mortgage act, upon compliance with which the mort
gagor may retain possession of the property mortgaged, is in derogation
of the common law. and must be strictly construed. To be valid as
against third persons no provision of the act can be neglected. Crane
et al. v. Qhandler, 21.
2. Section 10,
124, Gen. Laws, does not dispense with the re uisites
to the validity o a chattel mortgage, except the recording thereof when
the adversary party has actual notice. Ib.
3. Without an ackriowledgnient or memorandum a chattel mortgage

may be valid as between the parties, but it has no effect upon the rigli ts
of third parties acting in goot faith. Ib.
4. The object of the statute (Gen. Laws 122) is to prevent fraud and
deception bfy precluding the mortgagor of personal property from hold
ing imsel out to the world as an unqualied owner. To this end he
must
either
to the
"HG, or
notice as
to
the world
of transfer
the lien. the
by possession
acknowledging
andmort
16CT)1lafll11g
thegive
mortgage
required by the statute.
Horner v. Stout, 166.
INDEX.
607
CHECK:
1. A wager as towhether an execution can be collected, cannot be
considered as a wager upon any game within the meaning of the statute.
But as between the original parties to such a transaction, a. check giver;
in payment is void, as being in contravention of sound policy. Bough
ner v. Meyer, 71.
2. Such a check, however, in the hands of a bzma de holder, for
value received in due course of trade, must be (protected. Ib.
3. The holder of a check drawn against fun s cannot maintain an ac
tion in his own name against the drawee who refuses payment, regard
less of the question of acceptance. Colorado Nat. B'k v. Boettcher,
185.
4. To warrant the inference of acceptance from conduct it would seem
that the circumstances must clearly indicate such an intention on the
part of the drawee. Ib.
5. Mere detention does not constitute an implied ameptance, and a
conditional acceptance is not enforceable until complete fulllment of the
condition. Ib.
COMMISSIONS:
1. If an agent act for both parties in the same transaction, he can
not recover commissions from either, unless the parties knew and as
sented to his acting for both. Nor can an agent become the purchaser
without the knowledge and assent of the sel er. nor if he be employed
to urchase can he be himself the seller. Firmerty et al. v. Fritz, 174.
5). The general rule is, that the duties of an agent continue, and com
missions are not due, until he has effected a bargain and sale b a con
tract which is mutually binding on vendor and vendee. But when the
agent produces a purchaser acceptable to the owner and able and willing
to purchase on terms satisfactory to the owner, the agent has performed
his duty, and, if through the fault of the owner, the sale is not consum
mated, thc agent may recover his commissions. Ib.
COMMISSIONERS:
1. Where there is a failure to comply by the commissioners. with the
requirements of the not to provide for the exercise of the right of emi
nent domain, the court or judge may set aside the report, or re-submit and
direct a further nding.

2.
The P. di-A. V. R. R. C0. v. Rudd et al. 270.
Where a report failed to show that the question of benets was
considered by the commission, the report should have been set aside or
re-submitted. Ib.
COYDITION SUBSEQUENT:
Condition subsequent does not work a. forfeiture of property con
veyed by a. deed, until there is an actual breach. Conditions of orfeit
ure in grunts are not favored, and will not readily be implied. Thev
must be created by express terms or clear implication, and construed
strictly, because they tend to destroy estates. Brown v. The State, 496.
COVSTRUCTION OF STATUTES:
1. ln adopting substantially the statute of another State the legisla
ture is presumed to have intended that such statute shall receive the
same construction given it by the courts of the State from which it was
adopt/ed. BrmIbm-_:/ et al. v. Davis, 265.
2. In adopting the statute of a. sister State, the general rule is that
the legislature adopt also the settled construction given such law by the
courts of that State. Stebbins v. Amhanfq er al. 348.
3. The act of the legislature provided or the selection of grounds for a
008
SUPREME Cover or Cononsno.

1
COYSTRUCTION OF STATUTES--Continued.
capitol within the city of Denver," and located the capitol at the
city of Denver." The ground conveyed by the appellant was sixty feet
south of the corporate hmits of the city: Held, _when the construction of
a. statute is not an unreasonable one, and parties having acted upon it
and acquiesced in it for a. long time, _]llSl.lCE requires that the courts, for
the maintenance of property rights under it, should uphold the con
struction given by the parties.
Brown v. The State, 496.
See EMINENT DOMAIN, 1.

CONSIDERATION:
1. A third party for whose benet a simple contract has been entered
into for a valuable consideration, moving from the promises, may main
tain an action in his own name, or may plead it by way of set-otf.
Green et al. v. Morrison, 18.
2. For some purposes the consideration of a deed may be shown to be
different from that which is expressed. But the rule is, that this can
not be allowed for the purpose of avoiding the deed or varying its ef
fect. Brown v. The State, 496.
COYSTITUTION:
1. Under the Constitution (Sec. 2, Art. ll) neither the State, nor any
county, city, town, township or school district, can make any donation or
grant to, or in aid of, or become a. subscriber or shareholder in any corpo:eiion or COII|;)Z1.Il_Y. C.
R. R. Co. v. Lea et al, 192.
2. The 0 ce of a writ of error being fully explained by the common

luw, and Congress having authorized this court to issue it, the jurisdic~
tron
hear
determine
causes
brought
court ofythe
b means
of
this to
writ.
wasand
complete
without
further
actioninto
on this
the p.1.rt
legisla
ture.
Stebbins v. Anthonz, 273.
3. The constitution of t e State took the ptlgoe of the organic law of

thgrtIJseni}<I>)ry in continuing the writ of error
m this court to the county
co
.
.
(OWSTITUTIONAL LAW:
Where part of an act only is unconstitutional, and when this is
stricken out. if that which remains is complete in itself, and capable of
being enforced wholly independent of that which is rejected, it will be
sustained. The People ex rel. v. Rucker, 455.
COWSIGNOR AND CONSIGNEE:

1. The truth of an averment of ownership in the consignor. in an ac
tion against a carrier is to be determined by the evidence upon issue
made. Martin v. McLaughlin, 387.
2. Whether the consignor or consignee is entitled to an action against
the
upon
a liability
incurred in
shipmentoroforder
goods
deslieipment
nds as
wellcarrier
upon the
terms
of the contract,
as the
to surchase
and
between the consignor and consignee, an
the contract with the carrier,
as upon the general rule of law. Ib.

3. Presuinptively the general owner, or he in whom the property is
vested at the time the right of action accrues, is entitled to sue upon the
breach of contract of carriage. Ib.
COYTINUANCE:
See DILIGENCE, 4.
INDEx.
(30%)
CONTRACT:
1. A third party for whose benefit a simple contract has been enterel
into for a valuable consideration moving from the promisee may maintain
an action in his own name, or may plead it by way of set-off. Green et
al. v. Morrison, 18.
2. Where one contemplates entering into possession of the lands of

another to occupy for use, and is informed by the lessor that he can do so
after makes entry, and occupies and uses the land, it is a good acceptance
of the terms proposed, and he will become thereby bound under an im
plied contract to pay the sum named, or if no sum is named, then such
price as the use was reasonably worth. Dickson v. Moffatt. 114.
3. Where an agreement is entered into between a creditor and his
debtor, the terms of which are, that the debtor is to execute a new prom
ise with a surety, in a smaller sum, payable at a future day, the creditor
agreeing to accept the new promise in satisfaction of the old one, the
surety to be sufficient, and the new promise being executed and tendered
and the tender kept good: Held, that such performance and tender con
to the action on the original demand. Whitsett v. Clayton
et al. 476.
4. It is an elementary principle that the object to be attained in the

construction of a contract, is to discover and effectuate the intention of
the parties, and to this end the court will adopt that construction which
will bring it as near the actual meaning of the '' as the words they
saw fit to employ, when
construed, will permit. The St. L. d:
*''
D. L. d: M. Co., etc. v. Tierney, 582.
5. As a guide to a correct interpretation, the law also permits the sub
ject matter of the contract, the situation of the parties at the time of its
execution, and all the surrounding facts and circumstances to be taken
into consideration.
Ib.
6. A party will be held to that meaning which he knew the other

party supposed the words to bear, if this can be done without making a
new contract for the parties. Ib.
7. When a contract is fairly susceptible of a construction that will sup
port it, such construction ought to be adopted. Ib.
8. It is not adding anything to a written contract to imply an obliga

tion to do what was intended at the time it was entered into, and which
is essential to its vitality and force. Ib.
9. When a party enters into an agreement which can only take effect
by the continuance of a certain existing state of circumstances, there is
an implied engagement on his part that he will not, of his own mere
motion, do anything to put an end to that state of circumstances under
which alone the agreement can be operative. Ib.

10. Where a contract was set out in haec verba in the complaint, and
the answer only denied the authority of the person to execute it on th:
part
held, that the execution of the contract is thereby ad
: '".
mitted.
CONTRIBUTORY NEGLIGENCE:
See NEGLIGENCE.
CONTEMPT:
1. The right of self-preservation is inherent in the courts; the power

to punish for contempt is an incident to all courts, independent of statu
tory provisions. Hughes v. The People, 436.
2. Under the statute (Sec. 2871. Gen. Laws), upon oath of any one
interest d, ample power is given county courts to issue citations to com:

pel parties to appear and answer under oath touching their possession of
9
610

I
CONTEMPT-C0ntinued.
property belonging to an estate. But the statute is directory nieiely as
to the manner prescribed of bringing to the knowledge of the court in
formation touching such possession. Ib.
3. The law contemplates that upon application for change of venue.
facts shall be stated suicient to inform the judge of the nature of the
causes for the change, and their alleged foundation. Ib.
4. Upon aplplication for change of venue based upon the prejudice of
theaiudge, w ile the facts are to be stated. they are not to be set out be
yon what are necessary, where they involve the judicial acts or charac
ter of the judge.
5. A contempt may consist as well in the matter presented, as in the
manner of the person committing it, lb.
6. No forms. trial is had in cases for contempt, nor is the contempt
purged by an avowal that no contempt was intended. Ib.
CORPORATIONS:
1. In the absence of specic statutory directions, where the pi-opei-t_v
and busines of a corporation is under control of a receiver, the receiver
is the proper person uplon whom service should be had to bring the cor
poration in as a gamis ee. Phelan Impld v. Grmebin, 14.
2. The fact 0 a receiver of a railway corporation being non-resident,
is immaterial, where the receiver is operatin a portion of the railway
within the jurisdiction of the court issuing the garnishee process, and
where the sum due the judgment debtor is payable. 1b.
3. When the interpretation of a charter is doubtful, that construc
tion is to be given to it which is most favorable to the public, provided
it be equally reasonable.
The C. 03- G. R. Co. v, The People, ea: rel.
Taylor, 39.
4. It is competent for the commonwealth. through its courts, to waive

a forfeiture of a charter, and it is generally its duty to do so when the
infraction of its provisions is not wil f_ul. Ib.
-5. Under the Code (Sec. 37), service upon the agent of the receivers
of a foreign corporation, held suicient. Ganebin v. Phclan, 83.
6. Under the Constitution (Sec. 2, Art. ll) neither the State, nor any
county, city, town, township) or school ditrict, can make any donation
or grant to, or in aid of, or ecame a subscriber or shareholder ii! any
corporation or company. C. C. R. R. Co. v. Lea et /ll. 192.
7. The etfect oi sections 28 and 48 (R. S. p. 125) of the act concerning
corporations, is to give a road company the right to locate its road on
the general course designated in the articles o incorporation, and when
so located, to construct, maintain and operate the road on the line of
location, subjcctto the conditions of condemnation, compensation and
other requirements of the act. Riddcll er al. v. A. C. T. R. Co. 230.
8. Until the way is located, no rightof-way can be said to attach to
any part~icular land. Ib.
9. There is nothing in the lan'guage oftlie act to indicate an intention
on the Fitfli of the legislature, that upon the location of the road, the
right o the company in respect to its rightrof-way relates back to the
ling of the art-ic es of incorporation, and that sctt ers subsequent to that
date, although prior to the ocation of the road, take their lands siil-ji ct
to the company s right-of-way. Ib.

10. The doctrine ot' relation is sometimes resort-ed to, to prevent an in
justice, but never to work one.
Ib.
11. As s. gene:-al rule, it is quite well settled that the validity of the
existence of ii corporation cannot be questioned collateraly. Humph
rey-9 v. Mooney/, 282.
12. The omission from the certi cute of incorporation of the latter
_.._..__.
INDEX.
61 1
CORPORATIONSC0nti1med.
clause in section ninety-three of the incorporation act as to the assessa
bility of tlie stock of a. mining corporation, can not, in the absence ot
fraud, be regarded as essential to the corporate existence in an action by

one against the individual members upon a contract with the company.
Ib.
13. One accepting the obligation of a company as the engagement of a
corporation clothed with statutory liability only, and treating with them
as such, is presumed to have known t-"e extent of that liability, and to
have acted with reference thereto. Ib.
14. No provision is made by which individual liability attaches to
members 0 ii. corporation by reason of any omission to organize in the
manner prescribe by the incorporation act. 1 b.
V
15. The statute does not require that incorporators or oicers shall be
residents of the State, nor that the certicate of incorporation be execut
ed within the limits of the State; nor does the statute in terms require
a meeting of the incorporatozs prior to the execution ot' the certicate.
Ib.
16. The execution of a certicate of incorporation under the statute is
analogous to the execution of a deed of conveyance, and is of no validity
without delivery. It is the ling of the certicate that brings the corpo
ration into existence. Ib.
17. Under the statute (section 18 incorporation act) meetings of the
directors maylbe held beyond the limits of the State, if provision therefor
be made in t e certificate of incorporation. Ib.
13. The annual meeting ot' the stockholders for the election of directors
held without the State, a though irregular and illegal, cannot be taken
advantage of in a collateral proceeding by either the corporation, or one
contracting with it as such. Ib.
19. The persons who are na-med by the corporators in the certicate as
directors for the rst year, are created such directors by operation of law,
and not by election of the stockholders after the corporation is
formed. Ib.
20. VVhile a failure to record a duplicate of the certicate of incorpora
tion in the county where the operations of the company are carried on
may be such a. non-compliance with the law as woulc authorize the
people to sustain a writ of qua warmnto or scire farias, and to oust
the corporation from the exercise of their franchise, yet it does not follow
that as to third persons it is not a corporation. Ib.
21. Under a statute prrividing that all stockholders of corporations
shall be individually lia le to the creditors of the company to the amount
of unpaid stock held by them (Rev. Stat. Col. Cliap. 18, Sec. 12), a credit
or may maintain an action at law against an individual stockholder,

and recover to the amount of unpaid stock held by him. Smith et al.
V. Londoner, 365.
22. That the creditor who sues is also a stockholder in the company
does not, under the statute, make any dierence, provided he has paid in
full for the stock held by him, and consequently is not individually liable
for the debts of the company. Ib.
COUNTT COMMISSIONERS:
1. Both the Constitution and the statute now authorize the county
commissioners to ll a vacancy in the ottice of county judge, without re
gard to the duration of the unexpired term.
Boughton, 487.
The People ex rel. v.
2.B was on the 2nd day of October, 1877, elected county judge for
the term of three years. At the general election held November 2, 1880,
I) was chosen as successor, the term of D to commence on the 2nd Tucs
612
COUNTY COMMISSIONERS--Conlhiued.
day in January next thereafter.
On the 26th of November, 1880, D
having received his certicate of election. led his oath of oce and of
cial bond, which bond was on the 8th December approved by the board
of county commissioners.
On the lst day of January, 1881, D died,
not having had possession of the ofiice : Held, that B id not hold over.
and that, upon the expiration of his term, his successor having been
dfily elegtber and qualied before his death, a. vacancy occurred in said
0 oe.
.
3. The eligibility of the appointee of_the county commissioners. and
the regularity of the manner of_ his qualication, m the absence of facts
tending to show the contrary, Wlll be presumed. Ib.
COUNTY COURTS:
1. The extent of the jurisdiction of the county courts as to their pe
cuniary limit in suits, to enforce lien claims, is to be measured by the
amount involved in each claim severally, and not the aggregate of all
the claims presented against the same property. Keystone Mining Co.
et al. v. Gallagher etal. 23.
2. Where no one claim exceeds $2,000.00 in amount, any number of
claims may be adjudicated in the same proceeding. Ib.
3. Under the provisions of section nine of the schedule of the Consti
tution, tlie county courts, created by the Constitution, were. immediately
upon the adoption of the Constitution, clothed with all the powers there
tofore possessed by the probate courts. Ib.
4. In an action in a county court where it appeals from the complaint.
that the sum sought to be recovered does not exceed two thousand dol
lars, a. special jurisdictional averment is not essential under the statute
(Sec. 572, Gen. Laws, 1877). Barndollar at al. v. Pntfon, 46.
5. Under the statute (Gen. Laws, Sec. 2918), claims against an es
tate may be tried in the county courts before a jur, and without formal
pleading, as in ordinary trials before a justice of t e peace. Charles v.
Eshlmnan et al. 107.
6. The fact that a county judge is permitted to exercise an equitable
jurisdiction in the allowance of claims does not deprive litigants of the
riglht ogbsubmitting facts to juries, at least in actions not purely equit
a e.
.
7. If there be partnership plroperty, and also separate property of a
deceased partner, the partners ip debts are to be paid out oi the pro
ceeds of the joint estate, and the individual debts out of the proceeds of
the separate estate. In the exercise of equitable jurisdiction in the al
lowance of claims, county courts are strictly rest-mined from infringing
on this rule. Ib.
7. The proceedings of the county court must be presumed to have
been regular in every respect, unless the contrary appears in the record.
Gamer v. Chaee, 383.
8. In order to give the county courts jurisdiction in any action, suit
oglproceeding, it must afrinatively appear in the complaint, that the
v ue of the property in controvers or the amount involved, does not
exceed the sum of two thousand dollars. Gen. Laws, p. 253. Home at
al. v. Duet al. 574.
COUNTY JUDGE:
See COUNTY COMMISSIONERS, 1, 2, 3.
COVENANTS:
1. It is a rule that when_ there are express covenants in a deed, oth 1'
covenants will not be implied. Hurd et al. v. Smith,
Immx.
613
COVENA NTSC0nti1med.
2. There is no breach of a covenant of warranty until eviction, and in
pleading man action for such breach eviction must be alleged. I b.
CREDITOR:
See INCUMBRANCERS.
CREDITORFS BILL:
1. Since the adoption of the Code. remedies therein provided for sub
jecting theupropeity of a judgment debtor to execution. must be pursued
whenever equate for the purpose, and a bill in the nature of a creditor's
bill cannot be maintained in such cases. Herfor v. Cliord, 168.
2. The fact that the property sought is a trust fund, interposes no ob~
stacle in subjecting it to the satisfaction of the judgment under the Code,
when the fund was created by the debtor himselt, and the fund sought to
be reached has risen from the sale of his own property. Ib.
CRIMINAL COURTS:
1. The term "county courts " in the Constitution of Colorado (Secs.
22 and 23, Art. Vii. has a distinct meaning, and designates a distinct
court, and can not-, y any rules of interpretation, be made to include the
criminal
The Peo
le ea: rel. v.
Ruclcer,
2. The court.
Constitution
otPColomdo,
neither
by 455.
ex ress words nor neces
sary implication, requires that all judicial oicers shall be elected, and in
the absence of constitutional restraint the power of the General Assem
bly to declare the oice of criminal judge either elective, or appointive in
their discretion, was plenary. Ib.
3. The otce of criminal judge is provided for in article VI of the
Constitution, and is therefore included in section 29 of said artcle. An
existin ofce without an incumbent may be vacant, whether it be a new
or an old one. The legislative authority to create the oice of criminal
judge, and vest the original appointment in the ovemor, by and with
the advice and consent of the senate, is undoubted. The senate not be
ingin session when the act became a law, the govemor had no right to
appoint, and the oice existing without an incumbent. was vacant. This
"vacancy" can be lled only by a pointment by the county commis
sioners, as provided in Sec. 29, Art. iii of the Constitution. Ib.
4. In so far as the act provides that vacancies in the oiiice of judge of
the criminal court are to be lled by the governor, it is in conflict with
the Constitution, and the Constitution must be enforced as the pam
mount law. But the entire act does not therefore necessarily fail.
Where Eart of an act only is unconstitutional, and when this is stricken
out, ift t which remains is complete in itself. and capable of being en
forced,
whollyAssemlbly
inde endent
which
is rejected,
will be court,
sustained.
The General
had of
fullthat
power
to establish
a it
criminal
pro
vide for the appointment of a judge, and x his term of oice; and that
portion of the act decreed unconstitutional being supplied by the consti
tution, the act can be enforced. Ib.
5. Under the Constitution, criminal courts may be created by local
or special" acts, but their organization. jurisdiction and practice must be
grovided for by general laws, of uni orm operation throughout the
'tate.
E. parte Sloul, 509.
CROSS-BILL:
1. ' That the subject matter of a cross-bill is germane to the matters
set up in the original bill, is all the law requires.
589.
2.
Crisman v. H'i(Ier'n',
It is not to be expected that matters of defense, or matters en
(>14
CROSS-BILLCont|'nued.
titlin a defendant to atlirmative relief, will be fully stated in the origin
al bill; the limit of the requirement is that the allegations of the cross
bill shall grow out of and be connected with the subject matter of the
original bill. Ib.
3. When affirmative relief is sought by a cross-bill, it is not to this
extent a.pure cross-bill, but partakes of the nature of an original bill,
seeking urther aid of the court beyond the purposes of defense. The ne
lief sought must be equitable relief, or the bill will be held bad on de
murrer. Ib.
4. Where a demurrer to a cross-bill is overruled, and the flainti
elects btfl abidbe by his demurrer, airniative relief may be awarde on the
cross- ' . I .
CROSS COMPLAlNT:
See PLEADINGS, 15, 16, 17, 18.
DAMAGES:
1. The genera] rule is, that to authorize a. recovery for damages occa
sioned by the negligence of another, the plaiiitilt must have exercised that
reasonable de ree of care to avoid the in_]ury which an ordinarily prudent
%l;(?)l1 vouliloave exercised under like circumstances. Bah:-ens v. K.
2. The geneml law of this State permits the owners of cattle to allow
them to range at will, and in the absence of local acts, the owners ot
crops can only recover damages done thereto by the trespasses of cattle
when the same are, at the time of the trespass, inclosed by good and suf
cient fences. Morris v. Fraker, 425.
'
See EXEMPTIONS.
DFED:
1. A quit-claim deed is as effectual to mus the title to real estate as
any other, and the Bl.llCl13.Sl accepting sue deed without notice of prior
riglits, will be as fu y protected as if his deed contained full covenants of
warranty. Bradbury et al. v. Dru-is,265.
2. The possession of a deed and its record are prima facie evidence of
its deliverly and acceptance. Brown v. The Slate. 496.
3. Con 'tion subsequent does not work u. forfeiture of PPOPB? con
veyed by a. deed until there is an actual breach. Conditions of fo eiturv
in grants are not favored, and will not readily be im lied. They must
be created by ex ress terms or clear implication, ancl)construed strictly,
because they tend to destroy estates. I b.
_4. For some plurposes the consideration of a deed may be shown to lJ|'
d.1'erent from t at which is expressed. But the rule is. that this cannot
be allowed for the purpose of avoiding the deed or varying its effect. I b.
\\~_
DEBTOR AND CREDITOR:
See CONTRACT, 3.
I)ECEDENT'S ESTATE:
See PARTNERSHIP, 1.
DEGREE:
The essential provisions of a. decree in chancery, under the old practice.
could not be settled in vacation. McGan at al. v. 0Neil, 433.
INDEX.
615
DEMAND:
In debt on a bond, previous demand for payment is uniiecessary.
Board of County Connnissioners, etc. v. Sloan el al. 38.
DESERTION :
1. Desertionconsists in the actual ceasing of cohabitation and the in
tent insthe mind of the otfending party to desert the other. Stein v.
Stein 5 .
2. itiatrimonial cohabitation must comprehend a, living together as
husband and wife, embracing relative duties as such.
lb.
DILIGENCE:
1. To constitute due diligence does not require unusual effort or ox
penditures, but only such constancy in the pursuit of the undertaking as
is usual with those in like enterprises. Such assiduity as shows a Dona
jide intention to complete the undertaking within a reasonable time.
The Highland Ditch L70. v. Mumford, 325.
2. Equity will interfere to restrain an adverse party from availing
himself of a. judgment where there are any facts which prove it to bi
against conscience to execute such judgment, and of whic the injured
party could not have availed himse f in a court of law, or of which he
might have availed himself at law but was prevented by fraud or acci
dent unmixed with any faultor negligence in iinself or agents. Fisher
v. Green, 541.
' 3. Where the facts upon which relief is claimed existed before the
trial at law, and were known to the party asking the relief, or might
have been discovered by the exercise of ordinary diligence, and was as
much a defense at law as in equity, no redress can ordinarily be obtained

in equity. Ib.
4. A want of diligence that would forbid a continuance of the cause,
would forbid disturbing the judgment. Ib.
Sm DUE DILIGECE.
DISSEISIN:
\
'
Disseisin, however it may have been formerly. is not necessary to

the maintenance of the action substituted by the Code for ejectment.
Disseisin implies an actual entry and actual adverse possession which
are not essential under the Code. Brown v. The State, 496.
DIVORCE:
1. Desertion consists in the actual ceasing of cohabitation and the in
tent insghe mind of the offending party to desert the other.
Stein v.
Stain, r .
2. Matrimonial cohabitation-must comprehend a living together as
husband and wife, embracing relative du_tie_s as such. Ib.

3. Under t-he weight of authority the Jurisdiction of equity tribunals
has generally been asseited and maintained in this country in suits for
divorce in the absence of statutes, as well as under thein. Stebbins v.
Anthony et al. 3&8.
4. By the act of January 31. 1872, the Probate Court of Je'ei'son

county was given concurrent jurisdiction with the District C01-rt in all
actions at law or in ecpiity where the debt or sum claimed did not ex
oeed two thousand do lars, and therefore held, that in proceedings for
divorce not complicated with money or property claims exceeding two
thousand dollars. such Probate Court had jurisdiction. Ib.
5. Under sections one and five of the act of February 11, 1870. the
husband in a suit for divorce was a. competent witness, and " desertion"
held, under the wct, to be such a personal wrong as would bring the
husband within the exception provi ed by the terms of the statute.
Ib.
616
DRAFT:
See N EGOTIABLE INSTRUMENTS.
DUE DILIGENCE:
To constitute due diligence does not require unusual effort or ex
penditures. but only such constancy in the pursuit of the undertaking as
18 usual with those in like enterprises. Such assiduity as shows 21 bmm
de intention to complete the undertaking within a reasonable time.
The Highland Ditch C0. v. Muuford, 325.
EJECTMENT:
1. ln ejcctment, where the defendant claimed title to the whole prom
ises, disclaiming as to no part thereof, held, immaterial that the defend
ant was in actual possession of only a. part. The C. C. B. R. Co. v.
Smith, 160.
2. Disseisin, however it may have been formerly, is not necessary to

the maintenance of the action substituted by the Code for ejectment.
Disseisin implies an actual entry and actual adverse possession, WillLll
are not essential imder the Code.
EMINENT DOMAIN:
1. Vllhere there is a. failure to comply, by the commissioners, with the
requirements of the act to provide for the exercise of the right of eminent
domain, the court or judge may set aside the report, or re-submit and direct
a. further nding.
The Pueblo rt A. V. R. R. Co. v. Rudd. et al. 270.
2. Where a. lL'POl't failed to show that the question of benets was con
sidered by the commission, the report shoul have been set aside or re
submitte . Ib.
3. The statute must be trictly construed. Ib.
NROLLED BILLS:
See STATUTES, 5.
EQUITY :
1. Courts of equity will not interfere if a. party slumbers on his rights
or the means of detecting fraud. The full possession of the means of
detecting a. fraud is the same as knowledge. Pipe v. Smith. 146.
Courts of acts
equity
will assume
jurisdiction
0 and
causes
forrights,
the puwrhgre
se
of2.restraining
of trespass
to mining
property
water
the character and extent of the wrongi acts committed renders the in
jury irremediable. or where an action at law, by reason of the insolvency
of tlie2gfenda.nt, would not afford an adequate remedy. Derry v. R0a8
et a .
3. If the subject matter of litigation be outside the pale of equity jun

isdiction, and cannot possibly be brought within it, t e objection to the
jurisdiction may be taken at any time; but m all other cases, if the party
submit to the jurisdiction without objection until the decree is entered. he

thereby waives the objection and cannot raise it in the appellate oourt.
Ib.
4. In order that a misrepresentation may support an action or be of any
avail whatever as a. ground ot' relief in eguity. it is essential that it
should he material in its nature, and sh_oul be a. determining ground of

the transaction.
lt is not enough that it may have remotely or indirectly
goats-ibuted to the transaction.
Law-imer Co. L. I. Co. v. Cowan et al.
2 .
5. Equity will interfere to restrain an adverse party from availing him

self of a. judgment where the_r- are any facts which prove it to be against
conscience to execute such judgment, and of which the injured party
INDEx.
617
EQUITY-Continued.
could not have availed himself in a court of law, or of which he might

have availed himself at law but was prevented by fraud or accident un
mixed with any fault or negligence in himself or agents. Fisher v.
Green, 541.
6. Where the facts upon which relief is claimed existed before the trial
at law, and were known to the party asking the relief, or might have
been discovered by the exercise of ordinary diligence, and was as much
a defense at law as in equity, no redress can ordinarily be obtained in
equity. Ib.
7. A want of diligence that would forbid a continuance f the cause,
would forbid disturbing the judgment. Ib.
See DIWORCE, 3; EQUITABLE RELIEF.
EQUITABLE RELIEF:
1. It is not essential to the granting of equitable relief that irreparable

injury shall already have resulted from the acts complained of; it is only
required that the damage is threatened or inpending, and that a clear
necessity be shown for affording immediate protection to some right or
interest which would otherwise be seriously injured or impaired.
Cris
man v. Heiderer, 589.

2. The mere allegation that irreparable injury will result unless protec
tion is extended, is not sufficient; ' facts must bestated, that the court
may see how and why it would result, and that the apprehension of irrep
arable mischief is well founded.
Ib.
ERRORS:
1. The rules of the Supreme Court require plaintiffs in error and appel
lants to assign errors at the time of filing the transcript of the record.
Haas et al. v. Board Co. Com'rs, 125.
2. The rules of the Supreme Court require that each error shall be
separately alleged and particularly specified. The C. C. R. R. Co. v.
Smith, 160.
3. A writ of error only lies to such judgments and decrees of the dis
trict and county courts as are final.
v. McGaughey, 244.
Laws 1879, p. 229.
Alvord et al.
4. The findings of the court are no more a judgment than the verdict
of a jury in a cause tried by a jury; and a statement in a bill of excep
tions, that a judgment was rendered, can not supply the place of the
judgment itself.
Ib.
5. Errors occur ing in a judgment other than that appealed from,

can not be inquired into on appeal.
See PRACTICE IN SUPREME COURT, 6.

EVIDENCE:
1 The official stenographer of the court was permitted to read from his
notes the testimony of a witness taken at the trial of the indictment, and
who was beyond the jurisdiction of the court at the trial of this cause, for
the purpose of showing want of probable cause: Held, that the stenog
Brown v. Willoughby, 1.
2. It is not error for either witnesses or jurors to make comparison for
the purpose of forming an opinion concerning handwriting, when the
"' testimony was competent.
'' used for the purpose constitute a part of the record in the cause
and are undisputed.
ilber et al. v. Eicholtz, 240.
3. The general rule that parol evidence cannot be admitted to contra
dict or contol the language of a deed, but that latent ambiguities may be
explained by such evidence, held, applicable to a location certificate.
Pollard v. Shively et al. 309.
618
EVIDENCE-Conti'nued.
4. Whilea stump, hewed and marked. might be adopted as a locatioii
post, the dcscri tive survey should give both its real and assigned char
acter.
When the call in a. location certicate is for a post," parol testi
mony is inadmissible to show that while a post ' iscal ed for, a

stump " was in fact established as a. corner. Ib.
5. For some urposes the consideration of a. deed may be shown to be
different from tgiat which is express:-d. But the rule is, that this cannot
be allowed for the purpose o avoiding the deed or varying its effect.
6. A material man to maintain a. mechanic's lien under the statute

(Gen. Laws, p. 595, Sec. 1669), must aver and prove that at the time of
the notice
served
on the due
owner,
a lien, a.pay
meiit
was due
or touhlecome
fromoftheintention
owner totoclaim
the contractor.
Ep
ley v. Schercr, 536.
EVICTION:
'
See COVENANTS, 2.
EXCEPTIONS:
1. \Vhere a. cause is heard upon an agreed state of facts, no exception
to the judgment is necessary. George v. Tufts, 162.
2. While the Supreme Court will not review ii judgment upon the tes
timony when an exception to the judgment has not been reserved at a.
trial to the court. it will consider errors assigned, based upon exceptions
duly reserved during the progress of the trial. Colorado Springs Co. v.
Hopkins, 206.
3. Exceptions taken to instructions en masse will not be noticed in this

court on appeal, nor will it avail to complain in this court of an instruc
tion not excepted to in the court below. Wooten v. Seigel, 424.
F{ECUTION:
1. The return of an execution unsatised " by order of the plaintiff,
after a delay of nine months after levy, must be taken as a release of the
lien acquired not only by the execution, but in case of attachment, of the
attachment lien also, so far at least as respects any junior liens. Spec!
man v. Chaee, 247.
'
2. The lien of attachment becomes merged in the judgment, and the
only effect of the attachment thereafter is to reserve the priority of the

lien, and this riority is maintained and enibrced by issuance of execu
tion. If the pliiintiff neglects to issue execution and loses his judgment
lien thereby, the a.tt.achnient falls with it. The same degree of diligence
is required to preserve the priority of lien as is required in cases of exe
cution issued upon ordinary judgments without attachment. The roper
oice and use of an execution is to enforce the collection of a delit and
not to crcate a security.
Ib.
3. A direction by the execution creditor not to levy, or not to sell, is

prima facie evidence that the writ is being used as a mere security. 1 b.
4. Ilhtll absence of any statutory rule, and in the absence of fraud or
malades on the part of the judgment creditor, held, that one year is a
reasonable time within which to issue execution after judgment obtained,
where personal property has been attached. Ib.
5. Where the same otlicer holds more than one writ, diering in prior
ity, he may sell under the junior, and the property cannot betziken under
the senior writ from the purchaser: the proceeds. however, must be ap
plied to the senior writ. But to pass title to the purchaser in such a case
the_ sale must be fully consummated, the money paid, and the property
delivered. Ib.
INDEX.
6] 9
l< \ l-IO U'IIONContinued.

6. _A
urchaser at execution sale under his own execution, may not be
require to ay the money to the oicer. further than the costs of others:
but if there be a. dispute about the application of the proceeds of sale, in
case of more than one writ, the otcer may refuse to deliver without pay
ment or may sell again. Ib.
See CREDITOR'S BILL, 1.

EXECUTOR:
1. Execution may not issue against an executor, section 2924, Gen.
Laws. Mattison v. Childs et al. 78.
2. The survivor and the executor of a. deceased joint maker can not,
however, be joined in the same action, and in such case it is irregular to
proceed against the executor without dismissing the complaint as to the
survivor. Ib.
3. A judgment a ainst an executor should be for a sum named payable
out of the estate 0? the deceased in due course of administration. Ib.
4. An executor is bound to the exercise of that ordinary care. skill and
diligence which prudent men exercise in the conduct of their own affairs.
It is his duty to keep the trust fund separate and apart from his own
moneys. Haslre v. Starts, E.z:r, 140.
5. An executor cannot be heard to defend against a removal on the
ground that his violation of duty has beneted the estate. I I1.
6. The requirement that an executor shall give bonds for the faithful
performance of his duty. is only one safeguard against waste and mis
management; the power of removal is another, and legatees are entitled
to the rotection of both. Ib.
7. Tiie fact found that an executor has not acted fraudulently can not
avail him where his mismanagement has all the effects of a. fraud.
Ib
EXEMPTION:
1. A defendant in attachment, claiming (under the statute, subdivis
ion 6 of Sec. 26. Ch. LIII, Gen. Laws) as exempt from levy " implement!
or stock in trade
*
used or kept for the purpose of carrying

on his trade or business, not specically exempt by law, is entitled to
select such articles as are suitable to his trade or business; and a failure
on his part to make such selection, is a waiver of his right thereto.
Be
hymer v. Cook, 395.

2. A sherirt is not liable for damages for levying an attachment
upon property, not specically exempt by statute, in case the defendant
declines to designate the artic es he desires to claim. Ib.

3. Under the statute, no propertiy is exempt from levy to satisfy a
claim for the purchase money thereo ; and adefendant can not, by select
ing such property, under the sixth subdivision of the exemption law,
supra, exempt it from such liability. Ib.
FEYCES:
The general law of this State permits the owners of cattle to allow
them to range at will, and in the absence of local acts. the owners of
crops can only recover damages done thereto by the ti'espussrs of cattle.
when the same are. at the time of the trespass, incosed by good and
suicient fences. Mon-is v. Fraker, 425.
FlNDlNG:
See PRACTICE IN THE SUPREME COURT, 3.

Se JUDGMENT, 7, 8.
See PRACTICE UNDER THE CODE. SH.
620
FORFEITURE:
Condition subsequent does not work aforfeiture of property conveyed
by a deed until there is an actual bleach. Conditions of forfeiture in
grants are not favored, and will not readily be implied.
They must be
created by express terms or clear implication, and construed strictly, be

cause they tend to destroy estates. Brown v. The State, 496.
FRAUD:
1. Under the statute (Gen. Laws, Sec. 1682), hills for relief on the
round of fraud must be led within three years after the discovery.
y the aggrieved party, of the facts constituting the fraud. Pipe v.
S m ith - 146.
2.
The rule is, that where the fraud is committed more than three
years before the commencement of the action, the complaint should show
that the discovery was made within the three years next preceding the
commencement of the action. 1 b.
3. The coin lainant must allege not only his ignorance of the fraud.
but when and gow he discovered it. Ib.
4. The bar appearing on the face of the bill, a demurrer to the bill
will be sustained. Ib.
5. Courts of equity will not interfere if a. party slunibers on his rights.
or the means of detecting fraud. The full possession of the means of de~
tecting a fraud is the same as knowledge.
Ib.
6. lhere is no principle of law that will hold a party to the conse

quences resulting from the perpetration of fraud. who is innocent of all
participation in it, unless it be where the statute has declared instru
ments to be absolutely void, as having been given in violation of some
special statute. Wilber et al. v. Eicholtz, 240.
See LIMITATIONS, 8.
GARNISHMENT:
A receiver is amenable to gm-nishee process in the absence of stat
utory provision, and when the rocess does not t-end to disturb his rights
under the general orders oft e appointing court. Phelan, im_pl'd v.
Ganebin.
'
GENERAL ASSEMBLY: .
1. Where the people, by their constitution created the General As
sembly. and declared that the legislative power should be vested therein,
they conferred the full and complete power as it existed and rested in
themselves, sub'ect only to the restraints and limitations of their own
constitution and] the Constitution of the United States. The People e.r
rel. v. Rucker, 4-35.
2. Plenary powers in the legislature for all purposes of civil govern
ment is the rule. A prohibition to exercise a particular power is an ex
ception. In inquiring whether a particular statute is constitutional, it is
for those who question its validity to show that it is forbidden, either by
positive provision or necessary implication. In cases of doubt every pos
sible lpresumgtion and intendment will be made in favor of the constitu
tionn. ity of t e act. and the courts will only interfere in cases of clear and
unauestioned violation of the fundamental law. Courts are not at liberty
to eclare an act void. because in their opinion it is opposed to the spirit
supposed to prevade the constitution, but not expressed in words. lb
GRANT:
See CORPORATION, 6.
INDEX.
62 L
H /\NDWRlTING:
See EVIDENCE, 2.
HEIRS-AT-LAW:
1. A writ of error must be prosecuted within ve years from the date
nlif thge-en<htion of the decree in the court below. Clayton et al. v. Chee
ey. . .
2. Heirs-at-law, prosecuting in that character. have no eater rights
than the ancestor whom they represent, and where he, ifgl-iving, would
not be entitled to a. writ of error, it follows that his personal representa
tives, as such, are equally without the remedy. lb.
HUSBAND:
See WITNESS, 2.
INCUMBRANCERS:
A person having two funds out of which to satisfy his demands,
shall not in equity by his selection disappoint a party who has only one
fund. The assertion of the principle is not affected by the nature of the
property which constitutes the double fund. but applies wherever a. par
amount creditor holds collateral seem-ity,or can resort collaterally to other
real or personal property for the satisfaction of his debt.
The prior incumbrancer is entitled to notice of the junior claim. and
of the intention of the junior creditor to compel the former to make his
selection in compliance with this principle.
The rights of the junior creditor to have this principle administered is
ordinarily enforced by a. decree of subrogation.
To charfize the senior creditor, after notice, he must be shown to have
been a wil ful party to the dissipation or loss of the fund.

When the second fund consisted of chattels remaining in the hands of
the debtor, held, that the senior would not be accountable as for a. per
fect security.
Ross v. Duggcm et al. 85.
INDORSER:
Ifan indorser does not choose to x his own liability, the law will
x it for him. Dunn v. Ghost, 13 L.
See NEGOTIABLE INSTRUMENTS.

INDORSEE:
1. Plaintiff drew his sight draft on D in London. parable to the order
of C. a banker. delivered it to C to collect and place to account ot
plaintiff; C transmitted the draft to defendant, endorsed: Pay to the
order of the Colorado National Bank for account of C;" O was indebted
to the Colorado National Bank (defendant) at the time for balance, over
draft. The draft was paid; after payment. but before proceeds came to
defe -dant's hands, defendant was notied that plaintiff had delivered
the draft to C for collection, and that plaintitf claimed the (groceedsz
Held, that defendant was not liable in assumpsit for the procee . Wy
man v. Colorado National Bank, 30.
2. The possession by an indoisee of negotiable papler imports prima
facie that it was acquired bonade for full value in t e usual course of
business before maturity, and without notice of any circumstance iin
peaching its validity, and that such holder is the owner, and entitled to
recover the full amount against all prior parties. Ib.
See NEGOTIABLE INSTRUMENTS, 6.
622
SUPREME Coom or COLORADO.
INNOCENT THIRD PARTY:

lt is an elementary rule that whenever one of two parties must sutfer
by the act of a third, he who has enabled that third person to occasion
the loss must sustain it himself rather than the other innocent party.
W_1/mun v. Colorado .-Vational Bank, 30.
INTE REST:
Under the statute (Gen. Laws, p. 513), interest is not recoverable
upon a verdict. Hawley v. Barker, 118; Cody v. Filley, 124.
INSTRUCTIONS:
1. In construing a charge to a jury, each instruction should be consid
ered in connection with the entire charge, and if, considering the charge
and instructions us a. whole. this court IS satised the jlury were not im
properly advised as to any material point in the case, t e judgment will
not be reversed on the ground of an erroneous charge. McClellan1I rf
al. v. Bm-rm, 390.
2. Exceptions taken to instructions en nmsse will notbe noticed in this

court on appeal, nor will it avail to complain in this court of an instruc
tion not excepted to in the court below. Wooton v. Seigel, 424.
IRREPARABLE INJ URY:

is notshall
essential
to have
the grantin
equitable
that irrepara
bleItinjury
already
resultetxi of
from
the actsrelief,
complained
of; it is
only required that the damage is threatened or impending, and that a
clear necessity be shown for aifordiug immediate protection to some
right or interest which would otherwise be seriously injured or impaired.
C1-isman v. Heiderer, 589.
JUDGMENT:
1. Underthe Code (Sec. 150) the clerks of the district courts are author
ized to enter up judgments in vacation. The theory upon which judg
ments are so entered, is that the judgment is the sentence which the law
itself ronounces as a sequence of stetumry condition. Phelan Impl. v.
Ganelgin, 14.
2. Under the Code (Secs. 144, 150) judgment may be rendered in
vacation. Barndollar et al. v. Patton, 46.
3. An n pcal under section 338 of the Code lies only from nal judg
ments, and) no authority is found there for taking an appeal from either
an order denying a. continuance, or from an order setting aside a. verdict.
I/utterell ct al. v. Su-isher, 54.
4. Where there are several defendants all served, nal judgment
aaitinst
one oret more
be entered
without disposing the case as to
Bissell
al. v.cannot
Cushman,
76.
5. A judgment against an executor should be for a sum named. paya
ble out of the estate of the deceased in due course of administration.
Maltison v. Childs ct al. 78.
6. While this court will not review a. judgrnent upon the testimony
when an exception to the judgment has not been reserved at a trial to
the court, it will consider errors assigned based upon exceptions duly re
:Ze_rved2(<)16uri.ng the progress of the trial. Colorado Springs Co. v. Hop
'ms,
trict and county courts as are nal. Laws 1879, p. 229. Alvorrl at al.
v. McG'rm he;/, 244.
8. The tqindings of the court are no more a. judgment than the verdict
of a. jury in a cause tried by a jury; and a statement in a bill of excep
tions, that a judgment was rendered, can not supply the place of the
judgment itself. Ib.
INDEX.
623
J UDGMEN'IContinued.
_ 9. Where a motion was made and sustained to vacate a j1|(lf_,'lI1ni
erroneous the order vacating the judgment, it was not an order upon
which an appeal would lie, being in no sense a nal judgment. Iliggins
V. Brown et al. 345.
10. Ininconstruing
a char
to aentire
jury, each
instruction
should be con
sidered
connection
witgethe
charge,
and if, considering
the
charge and instructions as a. whole, this ciurt is satised the jury were
not improperly advised as to any material point in the cos, the judg
ment will not be reversed on the ground of an erroneous charge. Mc
Clelland et al. v. Burns, 390.
JUDGMENT DEBTOR:
See LIEN, 3.
See C_REDITOR'S BILL, 1, 2.
JUDGMENT CREDITOR:
A judgment creditor may_ maintain an action to cancel a, fraudu
lent conveyance before execution.Allen v. T:-itch et al. 222.
JURISDICTION:.
1. The extent of the jurisdiction of the county courts as to their po
cuniary limit in suits to enfoice lien claims, is to be measured by the
amount involved in each claim severally, and not the aggregate of all
the claims presented against the same property. Keystone Mining (.'u.
et al. v. Gallagher et al. 23.
2. In an action in a county couit where it appears from the complaint.
that the sum sought to be recovered does not exceed two thousand dol
lnrs, a. special jurisdictional averment is not essential under the statiiet
(Sec. 572, Gen. Laws, 1877).
3.
Barudollnr et al. v. Patton, 46.
Under the statute (Gen. Laws Sec. 291$), claims against an es
tate may be tried in the county courts before a jury, and without fonnul
pleading, as in ordinary trials before a justice of the peace. Charles v.

Eshleman et al. 107.
4. The fact that a county judge is permitted to exercise an equitable
jurisdiction in the allowance of cla-iins does not deprive litigants of the
right of submitting facts to juries, at least in actions no purely equitable.
Ib.
5. Courts of equity will assume jurisdiction of causes fbivthe pu

of restraining acts of trespass to minin property and waterri hts, where
the character and extent of the wrongii acts committed renders the in
jury irremediable, or where an action at law, by reason of the insolvency
of tllI82(g.5fGI1(l3.nlJ, would not afford an adequate remedy.
ei a .
- .
Derry v. Ross
6. If the subgect matter of _litig)ation be outside the gale of equity

jurisdiction, an can not 088llJly
brought within it, t e objection to
the jurisdiction may be ta en _at any time; but in all other cases, if the
party submit to the jurisdiction without objection until the decree is
entered, he thereby waives the objection and can not raise it in the appel
late court. Ib.
7. Under the Constitution, criminal courts may be created by local
or special" acts, but their organization, jurisdiction and practice must be
provided for by general laws, of uniform operation throughout the State.

.F.'.r purte Stoul, 509.
8. In order to give the county courts jurisdiction in any action, suit or
proceeding, it must airmntively appear in the complaint that the value
624
ll. Rl$DICTIONCont1'nuerl.
of the property in controversy or the amount involved, does not exceed
the sum ot' two thousand doliars (Gen. Laws, p. 2-3:3). Home et al. v.
Dufei al. 574.
JURORS :
1. Inability upon the part of persons called to serve as jurors to speak the
English Ian
, and to understand it when spoken, does not necessa
rilyli dis%ii:.h giem from serving as jurors. under the statutes of Colo
rw2.0. Conscientious
e own 0gcruples
Trinidad
v. Sim
6-3. of the death penalty do
against
thleISOH,
iniction
not, in a capital case, necessarily disqualify a juror entertaining tliem.
Stralm v. The Peo le, 276.
3. If notzwithstaniiing his conscientious scruples he will render a. ver

dict in accordance with the law and the evidence, and if. upon this point,
his answers have no uncertainty, this is all the law requires. Ib.
4. When the court upon its own motion or upon the epplication of :1
juror in the exercise of its discretion in the matter ot' excuse or exemption.
excuses a. juror for an insutcient cause, it is no ground for reversal. Bu:
Ahg rule cannot bf aplpgiad whenItbhere was a challenge for cause, and RI.
jn gment upont e c
enge.
.
5. Under the statute (Secs. 812 and 1479 Gen. Laws, after the regu
lar panel has been exhausted. the court may order a ta es, but the pris
oner has the right to object to the depletion of the panel on insuicient
grounds. Ib.
JURY:
1. Under the Code (Sec. 188), the c_ourt may _upon application of either
pa.rty_diroct a reference, when the trial of an isue 0
fiict requires the
examination of a long account on either side. The referee may be _di

rected to hear and decide the whole issue, or report upon any specic
question of fact involved: Huston _et a_l v. VIf'adsworth,
2. In this Shite there is no constitutional impediment in the way of a
liberal construction of a. Code remedy. The provisions o_f the Constitu

tion of the United States (Art. VII, amendments) securing the right of
trial by jury in suits at common la.w_where the value _in_ controversy
should exceed twenty dollars, was not intended as a restriction upon the
State courts.
Ib.
Q3. The weight of authority clearly establishes the rule that to permit
a jurytp separate under charge pending the trial of a murder case, is not
error per se; and it not appearing that the rights of the prisoner were
affected by such separation, is not cause for reversal. Thepractice, how

ever, of al owing juries in such cases to separate, though with consent of
the accused, is regarded as highly improper. Elkin v. The People, 508.
I.1\WS:
1. Under the Constitution, criminal courts may be created by local or
special acts, but their orga.niza.tion, jurisdiction and practice must he
provided for by gseneral laws, of uniform operation throughout the State.
Er parte Stout, O9.
2. All laws regulating the proceedings, practice and jurisdiction of courts
must be general; and the provisions regulating these matters, as regards
the Criminal Court of Lake County, being local," the act is, in so far,
unconstitutional. Ex mirte White, 521.
LFGISLATURE:
See GENERAL ASSEMBLY.
__
INDEX.
625
LIEN:
1. By the law merchant a banker has a. general lien on all securities
deposited with him by a customer, for his general balance, unless there is
a contract, express or implied, inconsistent with such lieu, and of this
the court will takejudicial notice. Wymem v. Colorado National Bank,
30.
2. Secret liens, which treat the vendor of personal property who has
delivered possession of it to the urchaser as the owner, until payment
of the purchase money, can not he maintained; they are constructively
fraudulent as to creditors.
George v. Tufts, 162.
3. Under the statute (Laws 1874, Sec. 1, p. 169), upon the lin of an
abstract of judgment in the ofce of the recorder, the judgment Eecame
a lien uplon all the real estate of the judgment debtor. Accrued rights
under t e act were saved bv the act repealing it. (Code, pp. 162-3.)
McFarren v. Knox et al. 217.
4. Real estate subject to execution under the provisions of the Revised
Statutes (Sec. 1, p. 370, 1868), included all interest of the defendant or
any) person to his use. held or claimed by virtue of any deed, etc. It is
to e presumed that the legislature used the term real estate " in the
act of 1874 with reference to this provision, and intended a lien upon
whatever real estate there might be a levy.
Ib.
See ATTACHMENT.
LIMITATIONS:
See PLEADINGS, 23.
1. Statutes limiting the time within which a. review maybe had,
whether by appeal or writ of error, are in the nature of statutes of repose.
Willoughby v. George, 80.
2. In appeal cases, when special pleading is not allowed, it is proper
for the the
respondent
to apply
theorappeal
it is not
l)l0ll ht
within
time limited
byto
thedismiss
statute,
if theif right
to appealgis
barred in any other manner. Ib.
3. When the right to apgeal is barred by lapse of time, the right to
plsad thelgbar is a vested rig t, and beyond the peril of subsequent legis
a. ion .
.
4. The statute (Act of 1879, Sec. 38, page 229), in so far as it allows a
writ of errortoa judgment in respect to which an appeal was ban-ed
prior to its passage, is retrospective in its operation, and not only
within the constitutional prohi ition, but within the prohibition of fun
damental principles governing retrospective laws. Ib.
5. The bar arising from the lapse of time within which an appeal can
be taken, is a veste
tion.
right and beyond the reach of subsequent legisla
Bond et al. v. First National B'k of Santa Fe, 83.
6. Under the statute (Gen. Laws, Sec. 1682), bills for relief on the
ground of fraud must be led within three years after the discovery. by
the aggrieved party, of the facts constituting the fraud. Pipe v. Smith,
146.
7. A bar by the Statute of Limitations is a defense in the nature of a
special privilege, and must be pleaded specially. Ilertor v. Clrford,
168.
8. Actions upon the ground of fraud must be instituted within three
years after the discovery of the fraudulent acts relied upon as the ground
of relief. or be forever barred. Brarlbury el al. v. Drmis, 265.
9. A writ of error must be prosecuted within ve years from the date of
tlhe i_3eg1__(lition of the decree in the coirtbelow.
011,-
Clayton et al. v. Chee
10. Heirs~atlaw, prosecuting in that character, have no greater rights
40
626
LlMITATIONSContinued.
than the ancestor whom they represent, and where be, if living, would
not be entitled to a writ of error, it follows that his personal representa
tives, as such, are equally without the remedy.
Ib.
LOCATION:
1. A recorded certicate of location is a statutory writing affecting
realty, being in part the basis of the miner's right of exclusive posses
sion and enjoyment " of his mining location, granted by the act of Con
gress of May 10, 1872. The purpose of description is to identify the claim
with reasonable certainty. Pollard v. Shively et al. 309.
2. The courses and distances of a survey must yield to its monuments,
whether natural or articial. Ib.
3. While a stump, hewed and marked, might be adopted as a location
post, the descriptive survey should give both its real and assigned char
acter. Wheii the call in a location certicate is for a post," arol tes
timony is inadmissible to show that while a post" is ca1l)ed for, a
stump " was in fact established as a corner. Ib.
4. The general rule that parol evidence can not be admitted to contra
dict or control the language of a deed, but that latent ambiguities may
be explained by such evidence, held, applicable to a. location certicate.
Ib.
5. The rule is that where monuments are relied upon to control courses
and distances, they must be found as called for. I b.
6. Marking the boundaries of a surface claim as required by the stat
ute, serves a double purpose: it operates to determine rights of the claim

ant as between himself and the Government, and to notify third persons
of his lights. Ib.
7. VVhere a variation exists between the monuments and the courses
and distances ofythc location certicate, it is necessary, prior to the pat
ent,
fortothe
as against
subse
locators,notice.
to keep Ib.
up his monu
ments
an locator,
extent that
gives fair
anlduent
reasonable
8. The requirements of the statute that the side ost< be placed in the
center of the side lines is satised if they be placed) substantially in the
center. 1 b.
9. The marking of the surface boundaries with posts is so far impera
tive under the statute as to require that the boundaries may be readily
traced by them. The notice which the statute contemplates and seeks by
and through them, may not be substantially impaired by any omission. Ib.
MAKER:
MALICIOUS PROSECUTION:
1. In an action for malicious prosecution, actual knowledge that a
crime was committed is not necessary, nor is it essential that the prose
cutor should know the facts and circumstances upon which he predicates
his belief. He may act upon credible information or deceptive appear
ances of guilt, if he acts in good faith. Brown v. Willoughb_1/, 1.
2. If in such case the defendant can show that he had robable cause
for his conduct in instituting the prosecution, he is not liable. Probable
cause is such a state of facts in the mind of the prosecutor as would lead
a man of ordinary prudence and caution to believe, or entertain an l"A0hL>t
and strong suspicion, that the person arrested is guilty. Ib.
3. In such action, if want o probable cause be shown, the proof of
actual malice is also requisite to sustain the action. Actual malice may
be proved by the acts and declarations of the party, or it may be inferred
by the jury from the want of probable cause. Ib.
INDEX.
627
MALICIOUS PROSECUTlONC0ntv'nued.
instigating the indictment is properly admissible in evidence. The in
tent of the prosecutor is the controlling inquiry when there is a want of
probable cause. Ib.
MANDAMUS:
The prolper function of the writ of mandamus is merely to set in
motion. t will therefore, in a proper case. be allowed to command ac
tioln, but never to control discretion.
The Union Colony, etc. v. Elliott,
37 .
MECHANICS LIEN:
1. The extent of the jurisdiction of the county courts as to their pecun
iary limit in suits toenforce Lien claims, is to be measured by the amount
involved in each claim severally, and not the a.ggregate of all the claims
presented against the same property. Keystone Mining C0. et al. v.
Galla her et al. 23.
2. %'here no one claim exceeds $2,000.00 in amount, any number of
claims may be adjudicated in the same proceeding. Ib.
3. The legal etlect of the latter clause of sect on seven of the act of
1872, is to give the mechanic, laborer or material man. a. lien from the
date of the commencement of the labor or the furnishing of the materials.
Ib.
4. A house built for the use of the mine and being part of the mining
pro ert , may be sold with the mme for the purpose of enforcing a lien
under the statute.
Powder, steel and candles furnished for the use of the
mine, held to be clearly within the meaning of the statute, and for which
alien may be enforce . Ib.
5. Want of personal service and the non-appearance of a. defendant,
in an action to enforce ii lien claim, will not vitiate a decree against such
defendant, although before the commencement of the suit he ad parted

with his interest. Ib.
6. The statute provides that the premises may be sold within the time
and in the manner provided for sales on execution issuing out of any
court of record. Ib.
7. A material man to maintain a.mecha.nic's lien under the statute

(Gen. Laws, p. 595. Sec. 1669), must aver and_prove that at the time of
the notice served upon the owner, of intention to claim a lien, a pay
ment was due or to become due from the owner to the contractor. E1)1e_I/
v. Scherer, 536.
MERGER:
The rule that when the equitable and legal estates unite in the same
person, the equitable is merged in the legal estate, is not inexible. Courts
of equity are accustomed to treat the estates as merged or separate, as
substantial justice may require.
Fassett el al. v. Mulock, 466.
MINING PARTNER:
The employment of counsel to litigate the title to the mine does not
come within the limited powers vested in a. mining partner. But this
rule does not apply to incorporated mining associations, nor to partner
ships formed under the statutes. Charles v. Eshleman et al. 107.
MINING PARTNERSHIPS:
.
1. The reason assigned for the distinction between th_e ordinary com
mercial partnerahip and a. mining partnership, and for limiting the_pow
ers of the partners of the latter class, is that H. mining partnership is not
62%
SUPREME Coonr or COLORADO.
MINING PARTNERSHIPSConIinued.
founded on the delrctus personw, whereas the other class is. Charles v.
Eshlemcm t al. 107.
2. The powers of members and managers of mining partnerships are
limited to the performance of such acts, in the name of the partnership,
as may be necessary to the transaction of the business, or which is usual

in like concerns. Ib.
MISREPRESENTATION:
In order that a misrepresentation may support an action or be of
any avail whatever as a ground of relief in equity, it is essential that it
should be material in its nature. and should be a determining ground of
the transaction. It is not enough that it may have remotely or indi
rectly contributed to the transaction. Larimer County L. I. C0. v.
Cowan et al. 320.
MONUMENTS AND BOUNDARIES:

See LOCATION.
. IORTGAGE:
1. A deed absolute on its face, but intended as a mortgage, is not
fraudulent and void as to creditors. Under the weight of authority
such a conveyance is an indication of fraud merely as against existing
creditors, not conclusive evidence of fraud, and may be removed by evi
dence of an honest intent. Ross v. Duggan et al. 85.

2. A mortgage is but an incident of the debt it secures, and an as
signment of the debt carries the mortgage with it. Fassett et al v.
Mulock, 466.
8. After having assigned the debt secured by the mortgage, the power
of the mortgagee ceases, and a release made y him is a nullitybcing
in fraud of the rights of his assignee-and such attempted release will be
canceled, and the mortgage lien enforced by the chancellor. Ib.
4. Where an estate is subject to a mortgage, and is sold by the mort
gagor in parcels at different times,_ the mortgage shall be satisedrst,
out of that portion of the estate still in the hands of the mortgagor, and
then out of the parcels aliened, in the inverse order of their alienation;
and this rule applies equally where the mortgagor has given mortgages
of different dates on the estate. Ib.
5. The purchaser of mortgaged premises has constructive notice of the
incumbrance, and takes it subject thereto; and that onest-ands in the
relation of mortgagee and owner of the rst mortgage, as well as pur
chaser, can make no difference in the application of the rule. A mort
gagee is at liberty to deal with the mortgaged property. and purchase
any portion of it, but, if he do so, there is no reason for exempting him
from the equities which attach in the case of any other purchaser. Ib.
6. As between grantee and mortgagor, the residue remaining iii,the
hands of the mortgagor shall be applied to the Eayinent of the mortgage
debt; as between the grantee and mortgagee, t e latter being a creditor
with two funds, is reciiliired to proceed, primarily, against the fund
upon which the grantee as no claim. Ib.

7. The rule that when equitable and legal estates unite in the same
erson, the equitable is merged in the egal estate, is not inexible.
Sourts of equity are accustomed to treat the estates as merged or sepa
rate, as substantial justice may require.
Ib.
i MUNICIPAL CORPORATION:
The legal existence of a municipal corporation will be conclusively
presume under section 2743, General Laws, when, without question, a.

oard of municipal officers exercising their otcial duties. has been main
tained for more than one year. The People ea: rel. v. Cm-ley, 412.
Immx.
629
NEGLIGENCE :
1. The eneral rule as to contributory ne ligence, which seems to be
establishes: is that it" the party injured by tie exercise of ordinary care
under the circumstances, might have avoided the consequences of the
defendants negli ence, but did not, the case is one of mutual fault, in
which the law wilgneither cast all the consequences upon the defendant,
nor will it attempt any apportionment thereof. C. 0. R. R. Co.v. Holmes,
197.
2. And when the plaintiff himself so far contributes to the injury by
his own negligence or want of care as but for such fault on his part the
injury wou d not have happened. he is not entitled to recover, un ess the
defendant by the exercise of care on his part might have avoided the
consequences of the negligent conduct of the plaintiff. Ib.
3. As a rule, the existence of negligence is a question of fact for the
jury, but it is otherwise when the facts are not in dispute, or when the
negligence or its absence is evident and unquestionable. In such case
the court may declare the fact established as a matter of law. Ib.
4. A carrier to be liable for injuryto a passenger. must have been
guilty of negligence which was the proximate cause of the injury com
plained of. McClelIunl et al. v. Burns, 390.
5. The general rule is, that to authorize a recovery for damages occa
sioned by the ne ligence of another, the laiuti' must have exercised
that reasonable gegree of care to avoid the injury which an ordinary
prudent person would have exercised under like circumstances. Behrens
v. K. P. Ry. Co. 400.
6. In actions of this character, it is incumbent on the plaintiff to make
outhim
a pr-ima
fncie
casethe
in negligence
his favor, showin
that the damages
claimed
by
resulted
from
of the dzefcndant.
Ib.
7. Where it affirmatively appears from the plainti"s evidence. that
the want of due rudence upon his art was the proximate cause of the
injury complained of. it becomes the duty of the court, upon motion
made for nonsuit, to decide as a question of law that the action can not
be maintained. Ib.
See DILIGENCE.
NEGOTIABLE INSTRUMENTS:
1. Plaintiff drew his sight draft on D in London, payable to the order
of C, a banker; delivered it to C to collect and place to account of plain
titf; C transmitted the draft to defendant, endorsed: " Pay to the order
of the Colorado National Bank for account of C;" C was indebted to the
Colorado National Bank (defendant), at the time for balance, overdraft.
The draft was paid; after payment, but before proceeds came to defend
ant's hunds, defendant was notied that plaintiff had delivered the draft
to C for collection, and that plaint-itfclaimed the proceeds: Held, that de
fendant was not liable in assumpsit for the proceeds.

rado Nafional Bank, 30.
Wyman v. Colo
-
2. The possession by an indorsee of negotiable papler, imports prima

facie that it was acquired bonajivle for full value in t e usual course of
business before maturity, and without notice of any circumstance im
peaching its validity, and that such holder is the owner, and entitled to
recover the full amount against all prior parties. Ib.
3. The statute (Sec. 7, page 111. R. S.) xes the liability of an as
signor by indorsement of negotiable instruments after diligence against
the maker by suit, unless such suit would have been unavailing. Dwm
v. Ghost, 134.
4. A plea and offer of roof to make a general indorsement a restric

tive one. or to show that the contract was dierent from that expressed,
can not be done without a violation of established principles. Ib.
63O
SUPREME Courrr or COLORADO.
NLGOTIABLE INSTRUMENTS-Continued.
5. Under the statute an assignee of a note takes it subject to any de
fense existing between the maker and the pa. 'ee, which appears on tha
face of the note, or of which he had notice at the time of the assignment,
and in such case it is immaterial whether the note was signed before or
after it became due. Ib.
6. In an action by an indolsee against an indorser an answer which
alleges that the consideration received by the indorser was less than the
face value of the note, is bad on demurrer. Ib.]
7. If an indorser does not choose to x his own liability, the law will
x it for him. Ib.
NEW PROMISE: '

See CONTRACT, 3.
NEW TRIAL:
See PRACTICE UNDER THE CODE, 32, 33.

NONS UIT:
Where it affirmatively appears from the plaintiffs evidence, that
the want of due rudonce upon his part was the proximate cause of the
injury complaineg of, it becomes the duty of the court upon motion made
for nonsuit, to decide as a question of law, that the action can not be
maintained. Behrens v. K. P. Ry. C0., 400.
See PRACTICE UNDER THE CODE, 29.

OFFICE:
1. It is a general rule that when the statute provides a remedy to test the
right to exercise a franchise or otiice, it is exc usive of all other remedies.
Atchison, T. :2 S. F. R. R. Co v. The People ea rel. Atfy-gen. 60.
2. An action for the usurpation of an othce or franchise is a. civil ac
tion under the Code of this State, and must be governed by the rules ap
plicable thereto; must be instituted by ling a complaint and issuing a

summons, and proceeded with the same as any other action. Ib.
OFFICER:
Where, by statute, authority is given to a particular officer, its exer
cise by any other oicers is forbidden by implication. Atchison, T. d;- S.
F. R. R. C0. v. The People ex rel. Aft;/-gem, 60.
See COUNTY COMMISSIONERS.

PARTIES TO ACTIONS:
Presumptivelythe general owner. or he in whom the property is vested
at the time the right of action accrues, is entitled to sue upon the breach
of contract of carriage. Martin v. McLaughlin, 387.
See PLEADING, 17, 18.
PARTNERSHIP:
I. It there be partnership property, and also separate property of a de
ceased partner, the partnership debts are to be paid out of the proceeds
of the joint estate, and the individual debts out of the proceeds of the
separate estate. In the exercise of equitable jurisdiction in the allow
ance of claims, county courts are strictly restrained from infringing on
this rule.
Charles v. Eshlcman at al. 107.
2. The reason assigned for the distinction between the ordinary com
mercial partnership and a. mining partnership, and for limiting the pow
INDEX.
631
PARTNERSHIP-Continued.
ers of the partners of the latter class, is that a mining partnership is not
founded
the delectus
mrsonw,
theofother
class
is. Ib.
3. Theon
powers
of memlbers
and whereas
managers
mining
partnerships
are
limited to the performance of such acts, III the name of the partnership,
as may be necessary to the transaction of the business, or which is usual
in like concems. Ib.
4. The
employment
of counsel
to liti ate athe
title topartner.
the mine But
does this
not
come
within
the limited
powers vestedgin
mining
rule does not apply to incorporated mining associations, nor to pa.rtner
ships formed under the statutes. Ib.
5. Interest in prots does not necessarily make a person a partner, or
liable as a partner. La Ferre v. Castagnio, 564.
'
6. Where a. person is only interested in the prots of a business as n.
means of compensation he is not a. partner. In such case his interest is
not a property in the prots as such, but a claim against them as a. fund
out of which, when ascertained, he is to be compensated. Ib.
PAYEE:

PLEADING:
1. In pleading under the Code, facts should be stated with certainty.
Llannirag v. Haas, 37.
2. The execution of a note is a. traversable fact, and it is a rule of
pleading that it is necessary to state a time when every material or trav

ersable act happened. I b.
3. Under the Code the objection for uncertainty is raised by demurrer.
Ib.
4. In an action brought by one for the use of another it is unnecessary
to allege or rove the use. Board of County Commissioners, etc. v.
Sloan et al.
5. It seems that a mere statement of legal conclusions, with a demand
that the defendant show by what authority it exercises a franchise. as
was anciently tolerated when the proceeding was by information in na
ture of a 240 warranto. would not be sufficient under the Code. The
C. Li G. . C0. v. The People ex rel. Taylor, 39.
6. A defect in pleading may be aided by pleading over. Ib.
7. In an action by an inclorsee against an indorser, an answer which
alleges that the consideration received by the indorser was less than the
face value of the note, is bad on demurrer. Dunn v. Ghost, 134.
8. It is not suicient to aver, in pleading, that the assignee is not a
bonade holder, in an action by the assignee against the drawer; the
defendant must aver that the plainti had notice of the original trans
action, and the burden of proof of bad faith rests with him who ussails
the title on that ground. Boughner v. Meyer, 71.
9. Inplearling. the allegation that letters testamentary were granted
and issued by the county court, is sutcient without averring an accept
7!-306 of the trust and qualication therefor. Mattison v. Child: et al.
lO._A plea. and offer of proof to make a general indorsement a re
strictive one, or to show that the contract was different from that ex
gressed, can not be done without aviolation of established principles.

mm v. Ghost, 135.
11. The rule is, that where the fraud is committed more than three
years before the commencement of the action. the complaint should
show that the discovery was made within the three years next preceding
the commencement of the action. _Pipe v. Smith, 146.
62
PLEADlNG-Continued.
12. The complainant must allege not only his ignorance of the fraud,
but when and how he discovered it. Ib.
13. The bar a pearing on the face of the bill, a demurrer to the bill
will be sustained. Ib.
.
14. A bar by the Statute of Limitations is a defense in the nature of a
iigegcial privilege, and must be pleaded specially. Hexter v. Clibrcl,
1-5. In an action on a rerlevin bond for the delivery of the property
in case the return thereo shall be awarded," the breach assigned must
be as broad as the condition of the bond; to allege a. failure to deliver,
merely, held bad on demurrer. Colorado Sgidngs Ca. v. Hopkins, 206.

16. The Code (Sec. 57), authorizes the
ing ot a. cross-complaint,
asking affirmative relief. Allen v. Tretch et al. 2'22.
17. The supplemental proceedings provided by the Code, appear to
be chiey directed to discovery, and in this respect at least, they are to
be regarded as ta-king the place of the former bill of discovery. I b.

18. They are not. however, adapted to reach the disputed property of the
judgment debtor; no contested title to progerty can be determined.
Ibe
19. The j udgment creditor may maintain is action to cancel a fraudulent

conveyance before execution. Ib.
20. The general rule as to parties in chancery is, that all ought to be
made parties who are interested in the controversy, in order that there
may be an end to litigation. Ib.
21. It is understood that the legislature intended by a cross-complaint,
the equivalent of the cross-bill as known to equity practice, and under
that practice it was competent to make a person not a party to the origi
nal bill, a part defendant to the cross-bil .
I b.
22. Taking leave to amend an answer after demurrer sustained. is a

waiver of the right to assign error upon the action of the court in sus
tainng the demurrer.
Hurd et al. v. Smith, 233.
23. A defendant has no right to continue to present the same defense

by different pleas. Ib.
24. There is no breach of a covenant of warranty until eviction, and
in Qpsloading in an action for such breach eviction must be alleged. Ib.
. Where the defendant answered, setting up the same defense relied
upon on demurrer. the demurrer having been overruled, held. that the
answer was a waiver of the demurrer.
Me;/er at al. v. Binkleman. 262.
26. If it appears on the face of the complaint that the action is barred
by the Statute of Limitations, and no facts are alleged taking the de~
mand out of the statute, a demurrer will lie; but if t e fact does not ap
pear upon the face of the complaint, the defense must be made in the
answer. Il2.
27. Section 1692, General Laws of 1877, establishes a rule of evidence,
and not a rule of pleading. 1 b.
28. Under the Code, where an answer contains no new matter, but
merely denies the allegations of the complaint, no reply is required. Ib.
29. Objection to pleading not made in the court be ow will not be no
ticed on appeal. I"assett et al. v. Mulock. 466.
30. Where a defendant puts in no general denial or other defense
based upon the facts as they existed at the commencement of the suit,
but sets u asa. defense matters subsequently occurring, he is not re
quired to plead by leave of the court by supplemental answer. Under the
code, Sec. 74, and amendments of 1879, p. 216, Sec. 3, are inapplicable
tosuch case. Whittset v. Clayton et al. 476.
31. After a return of the finding ofajury upon certain facts submitted,
the defendant asked leave to amend his answer upon a point submitted
and already covered by the answer: Held, that to have allowed such an
INDEX.
633
PLEADlNGConh'nued.
amendment would have been a very questionable exercise of discretion.
and that the court did not err in refusing to tolerate such an abuse of the
rules of practice. Sears v. Collins, 492.
29. The State, means the whole eogle united in one body politic, and
the State, " and the People of 518 tate, " are equivalent expressions.
A complaint brought in the name of the State of Colorado, is in ef
fect a suit in the name of the People of the State, " and is good on
demurrer. Brown v. The State, 496.
30. A material man to maintain a mechanic's lien under the statute
(Gen. Laws, p. 595, Sec. 1669), must aver and prove that at the time of
the notice served u on the owner, of intention to claim alien, a pay
ment was due or to become due from the owner tothe contractor. Epley
v. Scherer, 536.
31. Upon leave to amend, the plaintn'' may not state in his complaint
an entielz new cause of action. Givens v. Wheeler, 598. See amend
ment, , .
'
PLEADING IN EQUITY:
1. That the subject matter of a cross-bill is germane to the matters set
up in the Original bill is all the law requires. Crismanv. Heirlerer, 589.
2. It is not to be expected that matters of defense. or matters entitling
a. defendant to affirmative relief, will be fully stated in the original bill;
the limit of the requirement is that the allegations of the cross-bill shall
irw (pit of and be connected with the subject matter of the original
3. When airmative relief is sought by a cross-bill, it is not to this ex
tent a pure cross-bill, but partakes of the nature of an original bill. seek
ing further aid of the court beyond the purposes of the defense. The re
lief sought must be equitable relief, or the bill will be held bad on (le
murrer. Ib.
4. The mere allegation that irreparable injury will result unless pro
tection is extended is not sufficient, but facts must be stated, that the
court may see how and why it would result, and that the apprehension
of irrex_a}.lrable mischief is well founded. Ib.
5.
ere a demurrer to across-bill is overruled, and the glaintilf elects
ttlolabidg by his demurrer, airmative relief may be awarde on the cross
POLICE MAGISTRATE:
1. The creation of the oioe of police judge for a. city or incorporateil
town is within the legislative authority; an the election of such olcer
may, by law, be conferred upon the municipal authorities of cities of cer
tain classes; but the creation of a judicial oliicer by name merely, with
out dening his duties and providing the manner of their exercise, does
not constitute a court. In the absence of statutory authority the city
council can not establish jurisdiction and provide for the exercise of judi
cial functions. The People ear rel. V. Carley, 412.
2. A police magistrate," under the laws of this State, must be a
justice of thedpeaee. duly elected and qualied, primarily, and by ap
pointment or esignation by the proper authorities of a. municipality.
may become a police magistrate ezzoicio. Ib.
3. The otce of police judge, as denominated in sections 2714 and 2720
of the General Laws, can only be established and fully equipped for ser
vice by the legislature of the State; such oicer is not the creature of the
municipal authority of a city or town-such municipal authority can not
invest the office with any powers or functions of its own creation; and It
person assuming as police judge to exercise judicial functions under no
($34
lULlCE MAGISTRATEC0ntinued.
other license than that conferred by municipal authority, is guilty of
usurpation. Ib.
POSTS:
See LOCATION, 8, 9.
PRACTICE UNDER THE CODE:
1. An intermediate order" within the meaning of section 346 of the

Code, is an order from which no appeal can be taken. and whic -, hut for
the provision of the Code, could not be reviewed. Brown v. Willough
b I/'2.
. l.An intermediate order" within the meaning of section 346 of the
Code,
is an order
from
which
nonotihe
ap ealreviewed.
can be taken,
the provision
of the
Code
could
Ih. and which but for
8. Where no appeal is taken from an order denying a motion for a

new trial, the court will not examine the evidence with a view to deter
mine whether it is sutcient to su port the judgment. But any en~or of
law in admitting or excluding cvid,ence. may be reviewed on appeal from
the judgment, it made part of the record by bill of exceptions or state
ment on appeal. Ib.
4. Under the Code (Sec. 150) the clerks of he district courts are author
iz=d to enter up judgments in vacation. The theory upon which judg
ments are so entered is that the judgment is the sentence which the law
itself pronounces as a sequence of statutory condition. Phelan, Impl. v.
Gnnebin, 14.
5. Deciencies in a record can not be supplied,in this court by er parfe
aitidavit<. Where an amendment is desired to a sheritf s return appli
cation must be mzide in the court below. Barmiollare! al. v. Patton, 29.
6. Under the Code (Sec. 30), when a writ of summons is quashed
because fatally defective in form, a. new writ may be awarded by order
of the coiut. Ib.
7. Under the Code (Sec. 31). a statement in the summons that
said action is brought to lecover of the dclendants herein named, the
sum of seven hundred twenty-six and 51-100, evidenced by a promissory

note, dated December 1, 18755, which is more fully set forth in the plain
titfs complaint led in this court in this action, duly certied, together
with interest and the cost of this suit:
Held, a sutcient compliance
with the section requiring the general cause and nature of the action "
to be stated in the summons. Ib.
8. Under the Code (Secs. 144, 150), judgment may be rendered in
vacation. Ib.
9. An appeal under section 338 of the Code lies only from a nal judg
ment. and no authority is found for taking an appeal from either an
order denying a continuance or from an order setting aside a verdict.
Lulterel er al. v. Swisher, 54.
10. It is a general rule that when the statute provides a remedy to test
the right to exercise a franchise or oice. it is exclusive of all other rem
igies. Atchison T. & S. F. R. R. Co. v. The People ea: rel. Att_i/-gen.
11. An action for the usurpation of an oice or franchise is a civil ac
tion under the Code of this State. and must be governed by the rules
applicable thereto; must be instituted by ling a complaint and issuing
a. summons. and proceeded with the same as an other action. I b.
12. Where there are several defendants all served, nal judgment
against one or more can not be entered without disposing of the case as to
a l. Bissell at al. v. Cushman. 76.
13. Under the Code (Sec. 14), an action upon a joint note may be
INDEX.
635
PR .~\CTlCE UNDER THE CODE-Continuell.

mai;it_i;izned against both jointly, or either, separately. Mattiaon v. Childs
et a . r. .
14. The survivor and executor of a deceased joint maker can not. how
ever, be joined in the same action, and in such case it is irregular to pro
ceed 8,g3J2St the executor without dismissing the complaint as to the sur
vivor. I .
'
15. Under the Code (Sec. 37), service upon the agent of the receivers
of a foreign corporation, held sutlicient. Ganebin v. Phelun, 83.
16. It is well settled that papers led in the progress or trial of acause
at nisiprius, and not intrinsically arts of the record, can not become such
by being incorporated therein. "Pike et al v. Campbell. 126.
17. Attesting and proving abill of exceptions by aidavits is a method
of authentication that can not be resorted to in the absence. of neglect
or refusal " of the judge to allow, sign and seal the bill. Meyer at al v.
Inlcleman, 133.
18. If the appellants negligently postpone all action until the last dag:
of the time limited for signing a bill of exceptions, they can not ask to
Eelitevetd frpgn the hardship of a. temporary absence of the judge from his
is ['10 .
.
19. Under the Code (Sec. 338) an appeal to this court on a judg
ment in the district court, rendered on appeal from the county court.
is barred after ninety days from the rendition of the judgment. When
the bar attaches it can not be disturbed by subsequent legislation.
Ilewitt v. Col. Springs C0. 184.
_
20. Under the Code (Sec. 188) the court may, upon application of
either party, direct a reference when the trial of an issue of fact requires
the examination of a. long account on either side. The referee may be
directed to hear and decide the whole issue, or report upon any specic
question of fact involved.
Huston et al. v Wadsworth, 213.
21. In this State there is no constitutional impediment in the way of

a liberal construction of the Code remedy. The provision of the Consti
tution of the United States (Art. VII, amendments) securing the right of
trial by jury in suits at common law where the value in controversy
State courts. Ib.
22. The Code (Sec. 57) authorizes the ling of a. cross-complaint,
asking affirmative relief. Allen v. Tritch et al. 222.
23. The supplemental proceedings" provided by the Code, appear to
be chiey directed to discovery, and in this respect at least, they are to
be regarded as taking the place of the fonner bill of discovery. Ib.
24. They are not, however, adapted to reach the disputed property
of thejudginent debtor; no contested title to property can be eter
mined Ib.
2-5. The judgment creditor may maintain his action to cancel a. fraud
ulent conveyanoe before execution. Ib.
26. The general rule as to parties in chancery is, that all ought to be
made parties who are interested in the controversy, in order that there
may be an end to litigation. 1b.
27. It is understood that the legislature intended by a cross-complaint
the equivalent of the cross-bill as known to equity practice. and under
that practice it was competent to make a erson not u party to the origi
iml bill, a part defendant to the cross-bill]. Ib.
_
23. Taking leave to amend an answer after demurrer sustained, is a
waiver of the right to assign error upon the action of the court in sus
taining the demurrer. Hurd et al. v. Smilh, 233.
29. A defendant has no right to continue to present the same defense
by different pleas. Ib.
30. Section 1692. General Laws of 1877. Establishes a i-ue of evidence,
and not a rule of pleading. Meyer et al. v. b..i..-i'e.m.i, 2J..
636
SUPREME COURT or Comnsno.
PRACTICE UNDER THE CODE-Continued.

31. Where the plaintiff shows upon the trial no cause of action, or
makes out no case whatever, and no motion for nonsuit is interposed, it
is not only the right, but may be the duty of the court to direct a ver
dict for the defendant. This practice is common to both the Code and
the Common Law. Murlphy v. Cobb et al. 281.
32. When a. fiarty dec ines to avail himself of the opggrtunity offered
in the court be ow to amend his pleadings upon their
ing argudged
insufficient, he brinigs his cause into this court upon his own iigisgment
and at his own peri . The Colorado Springs C0. v. Hopkins, .
33. Where a motion was made and sustained to vacate a judgment

erroneous the order vaca.ti.n% the judgment, it was not an order upon
which an appeal would lie, eing in no sense a. nal judgment. Hig

gins v. BI0|l'1l _et al. _34-5.
_
_
_
34. The section ot the Code (201) which requires a motion for a. new
trial, and the decision thereon to be made and had at the same term the
ndings are made or verdict rendered, is directory merely so far as the

action of the court is required to be performed within a. specied time.
Gamer v. Cliaee, 383.
35. Where a trial was to the court, and its ndings were announced.
and counsel gave notice of a motion for ii. new trial, and subsequently at
the same term led his motion, but the motion was not disposed of until
the subsequent term: Held, that the proceedings at the mt term, sub
sequent to the ndinis, operated to reserve the case and to continue the
jurisdiction beyond t at term, for the purpose of disposing of the nio
tion and the settling the bill of exceptions. Ib.
36. The ndings of a court do not constitute a judgment. Ib.
37. After a return of the ndings of a jury upon certain facts submit
ted, the defendant asked leave to amend his answer upon a point sub~
mitted and already covered by the answer: Held, that to have allowed
such an amendment would
ave been a very questionable exercise of
discretion, and that the court did not err in refusing to tolerate such an
abuse of the rules of practice.
Sears v. Collins, 492.
PRACTICE IN THE SUPREME COURT:

1. Deciencies in a record can not be suptplied in this court by ear porte
affidavits. Where an amendment is desire to a. sheri"s return, appli
cation must be made in the court below. Barndollar ct al. v. Patton,

29.
2. This court can not consider matters of evidenw upon stipulation
meigzly, and not properly brought up by the record. Ross v. Duggan cl
al. 5.
3. When the trial_is to the court, the nding will not be disturbed
unless manifestly against the weight of evidence. Dickson v. JlIo_'att,
114.
4. The rules of the Supreme Court require plaintiffs in error and a
pellants to assign errors at the time of ling the transcript of the record:
Haas ct al. v. Board Co. Cam's, 125.
5. The rules of the Supreme Court require that each error shall be
separately alleged and particularly specied. The C. C. R.R. Co. v.
Smith, 160.
6. VVhilc this court will not review a judgment upon the testimony,
when an exception to the judgment has not been reserved at a trial to
the court. it will consider errors assigned based upon exceptions duly re
i9l'V8\'1z((_lll'l.Xlg the progress of the trial. Colorado Springs Co. v. Hop
ms, , .
7. When a party declines to avail himself of the opportunity oered in
1.
_-77
INDEX.
637
R UJTICE IN THE SUPREME COURTContinued.

the court below toamend his pleadings upon their being adjudged in
suicient, he brings his cause into this court upon his own judgment
and at his own peril. The Colorado Springs Co. v. Hopkins, 338.
8. Where the transcript of an amended record shows that notice was
given to the opposin counsel of the time when ap lication would be
made in the court beaw for leave to correct the recorrl), and that a copy
of the petition in that behalf had been furnished, and the amendment hav
ing been made, and the cause being still pending in this court, leave will
be granted in furtherance of 'ustice, to le the supplemental record, al
though the cause had been submitted at the previous term. Stebbins v.
Anthgnvget al. 342.
9.
ere the plaintiff failed to assign error during vacation under
an order of court, and defendant led a motion to dismiss for non
compliance with the order, no delay in the submission of the cause having
occurred, the motion to dismiss was denied. Home et alv. Due! al, 344.
10. Leave having been granted to le a supplemental record in this

court, and it appearing that the supposed supplemental record was of
matters subsequent to and independent of the decree in the original record,
the supplemental record was stricken out upon the courts own molion.
Becker Impl, etc., v. Henderson, 346.
11. Aplaintiff in error may dismiss his writ. Ib.

12. The Supreme Court may take jurisdiction in an agreed case.
The
Peo le ea: rel. v. Boughton, 487.
Iii}. The arties having submitted themselves to the jurisdiction of this

court, it will not only determine their rights, but enforce its adjudication
by the entry of an appropriate juiygment. Ib.
14. Errors occumng 111 a judgment other than that appealed from,
can not be inquired into on appeal. Brown v. The State. 4 6.
PRACTICE IN CHANCERY:
1. Under the old system of practice a nal decree could not be entered
in vacation. McGan et al. v. O'Neil, 58.
2. The verdict of a jury as to issues of fact framed by the co".rt in a
suit in equity, has not the dignity f a like verdict in an action at law.
It is advisory only. It is the duty of the court in such case to sift the
entire evidence, and to found such decree thereon, as may be warranted by
all the facts elicited. Ib.
3. Filing an amended answer is a waiver of error that might have
been committed by the court in sustaining exception: to the original
answer, the same matter being set up and relied upon in defense at the
hearin . Derry v. Ross et al. 295.
4. The essential provisions of a decree in chancery, under the old prac
tice. could not be settled in vacation. McGan et al. v. O'Neil,
See EQUITY.
See PRACTICE UNDER THE CODE, 6.
PRINCIPAL AND AGENT:
A title bond executed by the owner of the property, that only gives
to the obligee an option to purchase. but not being a mutual obligation
binding upon both contracting parties, is enforcible only bv acceptance
and performance of its conditions, during the continuance of the option.
And where an agent to sell negotiates such conditional sale as between
himself
and his princi
al, themay
execution
and delivery
bond
to
the purchaser
or oblligee,
be regarded
as a saleofofsuch
the title
property,
durin the option; and the agent may negotiate a sale of the same prop
erty gr the obligee, without forfeiting his commissions. But i the
agent, concealing from the obligee his agency to sell, induce the latte:
638
PRINCIPAL AND AGENTC0nt'nued.

to undertake, in connection with himself, the purchase of the property
such concealment being obnoxious to the ru es of public po icy. will
avoid his commissions, whether the seller knew of the double relation or
not. Finnerty et al. v. Fritz, 174.
PRIOR INCUMBRANCER:
See INCUMBRANCERS.
PROBABLE CAUSE:
1. lf in an action for malicious prosecution the defendant can show
that he had probable cause for his conduct in instituting the | r secution.
he is not liable. Probable cause is such a state of facts in the mind of
the prosecutor as would lead a man of ordinary prudence and caution to
believe or entertain an honest and strong suspicion, that the person ar
rested is guilty. Brown v. Willoughbg/, 1.
2. In such action, if want of probable cause be shown, the proof of
actual malice is also requisite to sustain the action. Actual ma ice lI1il_\'
b = proved by the acts and declarations of the party, or it may be infe rcd
by the 'ury from the want of probable cause. Ib.
3. Vtihatever lends to show evil intent on the part of the prosecutor in

instigating the indictment is properly admissible in evidence. The in
tent of the prosecutor is the controlling inquiry when there is want of
probable cause. Ib.
instigating the indictme t is properly admissible in evidence. The in
t*nt of the prosecutor is the controlling inquiry when there is want of
probable cause. Ib.
5. ihe official stenographer of the court was permitted to read ~om

his notes the testimony of a witness taken at the trial of the mdict r.en_t,
and who was beyond he jurisdiction of the court at the trial of this
cause. for the purpose of showinglvant of probable cause: Held, that the
stenographers testimony was competent. Ib.
PROBATE COURTS:
See DIVORCE, 4.
PROCESS:
Under the Code (Sec. 37). service upon the agent of the receivers of
a foreign corporation, held sutlicient.
Ganebin v. Phelan-, 83.
PROFITS :
1. Interest in prots does not necessarily make a person n partner or
liable as a partner. LeFevre v. Castaqnio, 564.
2. Where a. person is only interested in the rots of a business as a.
means of compensation he is not a partner. iii such case his interest is
not a property in the prots as such, but a claim against them as a fund
out of which, when ascertained, he is to be compensated.
Ib.
PROMISSORY NOTE:
1. Under the _Code (Sec. 14), an action upona joint note mav be
maintained against both jointly, or either, separately.
Childs ct al. 78.
llIam'so'n v.
2. The survivor and the executor of a deceased joint maker can not.
however, be joined in the same action. and in such case it is irregular to
proceed agz;il:1st the executor without dismissing the complaint as to the

survivor.
.
INDEX.
639
PURCHASE MONEY:
See EXEMPTIONS, 3.
PURCHASER:
A purchaser
at execution
saleoliicer,
underfurther
his ownthan
execution,
not be
required
to ay the
money to the
the costsma.
otxothers;
but if thereie a dispute about the application of the proceeds of sale, in
case of more than one writ, the oiiicer may refuse to deliver withoift pay
ment or may sell again. Speelman v. Chafee, 247.
QUIT-CLAIM:
See DEED, 1.
QUO WARRANTO:
1. Under chapter twenty-ve of the Code, a. proceeding instituted for
the purpose of remedying the usurpation or misuse of a. corporate fran
chise or a public oice is by civil complaint and summons. The crim
inal form of the old action is superseded by civil action. In terms,
chapter seventy-three of the Revised Statutes authorizing proceedings by
quo amrranfo, is repealed by section 477 of the Code. The C. rt G. R.
C0. v. The People ea: rel. Taylor, 39. .
2. The Constitution confers original jurisdiction on this court to issue
writs of qua warranio, and to hear and determine the same.
The Peo
ex rel. v. Boughton, 487.
3. The repeal of the statute git. S. Ch. LXXIII), and the enactment of
the Code remedy did not take rom this court its original jurisdiction in
qua warranto proceedings conferred by the Constitution. _ lb.
RATIFICATION:
Ratication can only be eB'ectual between the parties when the act
is done by the agent avowedly for gr on account of the principal, and not
when it is done or or on account gt the agent. Charles v. Eshlcmmi
et al. 107.
REAL ESTATE:
Real estate subject to execution under the provisions of the Re
vised Statutes (Sec. 1, p. 370, 1863), included all interest of the defend
ant or any person to his use, held or claimed by virtue of ugly deed, etc.
lt is to be presumed that the legislature used t e term re estate in
the act of 1874 with reference to this provision, Ind intended alienupon
ahlatever real estate there might be a levy. McFar1-an v. Knox: at al.
RECEIVER:
1. In the absence of specic statutory directions, where the property
and business of a. corporation is under control of a receiver, the receiver
is the proper person upion whom service should be had to bring the cor~
poration in as o. garnis ee. Phelrm Impl. v. Grmebin, 14.
2. The fact of s. receiver of a. railway corporation being non-resident
is imniat/erial, where the receiver is operating a portion of the railway

within the jurisdiction of the court issuing the garnishee process, and
where the sum due the judgment debtor is payable. Ib.
3. When the court appointing the receiver is in another State than
the court out of which the gurnishee process issued, it is not incumbent
pig the latter court to ask leave of the former bcfoie issuing such process.
4. A receiver is amenable to garnishee process in the absence of statu
tory provision, and when the process does not tend to disturb his rights
un er the general orders of the appointing court. Ib.
640
RECEIVER--Continued.
5. Under the Code (Sec. 37) service upon the agent of the receivers
of a foreign corporation, held suicient. Ganebin v. Phelan, 83.
RECORD:
It is well settled that papers led in the progress or trial of a cause
atqnisi prius, and not intrinsically parts of the record, can not become
such by being incorporated therein. Wike et al. v. Campbell, 126.
RELATION:
See RIGHT-OF-WAY, 3.
RELIEF IN EQUITY:
See EQUITY.
REPLEVIN:
A frame building erected upon and attached to the realty anl
used as a tannery, helrl in this case to be real estate, and not replevin
ble. Eddy v. Hall, 576.
REPLEVIN BOND:
1. In an action on a replevin bond for the delivery of the property in
case the return thereof shall be awarded, the breach assigne must he
as broad as the condition of the bond; to allege a. failure to deliver,
merelv, held bad on demurrer. Colorada Springs Co. v. l~Iopkz'ns, 206.

2. The same matters litigated in a replevin suit may not be re-exam
ined in a suit upon the replevin bond. Ib.
RES ADJUDICATAE:
The doctrine of res a_djudica_lae requires that the same identical
matter should have been in quest1Qn. Allen v. Tritchet al. 222.

RIGHT-OF-WAY:
1. The effect of sections 28 and 48 (R. S. p. 125) of the act concerning
corporations, is to give a, road company the right to locate its road on the
eneral course designated in the articles of incorporation, and when so
focated to construct. maintain and operate the road on the line of loca
tion, subject to the conditions of condemnation, compensation and other
requirements of the act. Riddel ct al. v. The Animus Tolllfoad Co. 230.
2. Until the way is located, no right-of-way can be said to attach to
an; particular land. Ib.
. There is nothin in the langua of the act to indicate an inten
tion on the part of t e legislature, t at upon the location of the road.
the right of the company in respect to its right-of-way relates back to
the filing of the articles of incorporation, and that settlers subsequent to
that date, although prior to the location of the road. take their lands
subject to the company's right-of-way. Ib.
4. The doctrine of relation is sometimes resorted to, to prevent an in
justice, but never to work one. I b. .
RULES OF THE SUPREME COURT:
SIDE POSTS:
See LOCATION.
SALE:
See EXECUTION, 6.
INDEX.
641
SECRET LIEN:
See LIEN.
SET-OFF:
A third party for whose benet a simple contract has been entered
into for a va uable consideration moving from the proinisee may main
tain an action in his own name, or may plead it by way of set-off. Green
et al. v. Morrison, 18.
SHERIFF'S RETURN:
r
Deciencies in a record can not be supplied in this court by ea: parte

atdavits.
Where an amendment is desiredto a sheritl"s return, applica
tion must be made in the court below.
Barmiollar et al. v. Patton, 29.
STATE :
1. It is accepted law, that a State, as a political corporation, may
maintain, in its corplorate name and in its own courts, actions for the en
forcement of its rig ts or the redress of its wrongs indeiendently of any
statutory grovisions therefor.
Brown v. The State, 49 .
2. The state, means the whole people united in one body politic, and
the State, and, " the People of the State," are equivalent expressions.
A complaint brought in the name of the State o Colorado, is in ef
fect a suit
the name of the People of the State, and is good on de
murrer.
.
STATUTE:
1. It seems that under the Constitution so much of any act as
directly germane to the subject expressed in the title, is without
That the provision of the Constitution is a mandatory declaration
essential condition to the validity of legislative enactments. The
is not
force.
of an
C. di
G. R. Co. v. The People ex rel. Ta;/lor, 39.
2. In adopting the statute of a sister State, the general ru'e is that the
Leg-isla ure adopts also the settled construction given such law by the
courts of that State. Strbbins v. Anthony et al. 348.
3. In adopting substantially the statute of another State, the legisla
lature is presumed to have intended that such statute shall receive the
same construction given it by the courts of the State from which it was
adopted.
Bradbury et al v. Davis, 265.
4. The act of the legislature provided for the selection of grounds for
ca
itol wit-hin
city of conveyed
Denver,"by
and
the was
capitol
at
the
city
oflilenver."
Thethe
ground
thelocated
appellant
sixty
feet
south
of the corporate limits of the city: Held, when the construction of a stat
ute is not an unreasonable one,-and parties havin acted upon it and ac
quiesced in it for along time, justice reitiires that the courts. for the
maintenance of property rights imder it, s ould uphold the construction
given by the parties. Brown v. The State, 496.
5. The printed statutes published by authority, and the enrolled bills
dul authenticated and on le with the proper custodian, are pr1'1na_faciv
evidence of what the law is, but not conclusive.
In re Roberts, 525.
6. Whenever a question arises of the existence of a statute, or of its

precise terms, or its constitutional enactment, the court may resort to tho
egislative 'ournals as proper sources of mformation as evidence, the value
of which ttie court is to determine. Ib.
7. The requirement of Sec. 26 of the Constitution of the State of Colo
rado, that the fact of the signing of a bill lay the plresiding otcer in the
presence of the house over whic he_ presi es s all be entered on the
_1ournal," is directory, and in the silence of the journal it shall be pre
sumed that the bill was so signed. Ib.
41
642
STENOGRAPHER:
See WITNESS, 1.
STI PULATION :
See PRACTICE IN THE SUPREME COURT, 2.

STOCK HOLDERS:
1. Under a statute providing that all stockholders of corgorations shall
be individually liable to the creditors of the company to t e amount of
unpaid stock held by them (Rev. Stat. Col. Chap. 18, Sec. 12). a creditor
may maintain an action at law against an individual stockholder. and re
cover i()i;lSJ amount of unpaid stock held by him. Smith at al. v. Lon
doner. .
- .
2. That the creditor who sues is also a. stockholder in the company,

does not under the statute, make any ditference, provided he has paid in
full for the stock held by him, and consequently is not individually liable
for the debts of the company. I b.
SUBSCRIBER:
See CORPORATION, 6.
SUPPLEMENTAL RECORD:
See PRACTICE IN THE SUPREME COURT, 8, 10.
SURVEY:
The courses and distances of a survey must yield to its monuments,
whether natural or articial. Pollard v. Shioely et al. 309.
See LOCATION.
TIME :
1. Under the chanoery act, before the adoption of the Corle, in the
com utation of time of publication of summons. the rule was to EX('ll1(l
the day of publication and include the rst day of the tenn. Stvbbius v.
Anthony et al. 348.
2. The general current of modern authority is that where a statute re
quires an act to be performed a certain number of days prior to a. day
named, or within a definite period after a day or event specied, or where
time is to be computed either prior or subsequent to a day named. the
$1l3.l!:'ll.1l8 isItbo exclude one day of the designated period and to include
e 0 er.
.
TITLE BOND:
1. A title bond executed by the owner of the property, that only gives
to the obligee an option to purchase, not being amutual obligation bind
ing upon both contracting parties, is enforcib e only by acceptance and
performance of its conditions during the continuance of the option. Fin
ncrly et al v. Fritz, 274.
2. The execution and delivery of a bond conditioned to convey a min

ing claim upon payment or deposit of a certain sum within a given time,
the bond not being signed by the obligee, containing no clause granting
him possession during the option, and having no oonsideration expressed
for t e option given, held. that until acceptance by the obligee or per
formance of some act equivalent to an election to gurchsse under the
terms prescribed, such a bond is a nudum pactum, an subject to revoca

tion; also, that the taking possession under such a bond, and making
improvements without objection from the obligor, would not render th
Iivriizx.
643
'1lTLE BOND-Conti'~nued.
bond irrevocable; nor could such entry be considered equivalent to an
election to purchase, nor be construed mto a. performance. Gordon et al.
v. Darnell, 302.
TITLE OF STATUTE :
It seems that under the Constitution so much of any act as is not direct
I germane to the subject expressed in the title, is without force. That
the provision of the Constitution is a mandatory declaration of an essen
tial conditionto the validity of legislative enactments. The C. * G. R.
C0. v. The People en: rel. Taylor, 39.
TOLL ROADS:
1. The effect of sections 28 and 48 (R. S. p. 125), of the act concern
ing corporations, is to give a. road company the right to locate its road
on the general course designated in the articles of incorporation, and
when so located, to construct, maintain and operate the road on the line
of location. subject to the conditions of condemnation, compensation

and other requirements of the act. Riddell at al. v. The Animus Toll
Road Co. 230.
_
2. Until the wag is located, no right-of-way can be said to attach to
an particular Ian . Ib.
5 There is nothing in the languaie of the act to indicate an inten
tion on the part of the Legislature, t at upon the location of the road,
the right of the company in respect to its ll%l1ii of way relates back to the
ling of the articles of incorporation, and t at settlers subsequent to that
date, although prior to the location of the road, take their lands subject
to the company s right of way. Ib.
4. The doctrine of relation is sometimes resorted to, to prevent an in
justice, but never to work one. Ib.
TOLL ROADS:
A toll road company organized under the incorporation act of 1874
(Laws 1864,
66, 28), may not establish and collect tolls at two gates
dist-ant less t an ten miles from each other. The C. xi G. R. Co. v. The
People ex rel. Taylor, 39.
TRIAL BY JURY :
1. Under the Code (Sec. 188), the court may upon apgilication of either
party direct of
a reference
when on
theeither
trial side.
of an The
issuereferee
0 fact
re uires
the
examination
a long accoimt
maytlie
direct
ed to hear and decide the whole issue, or ieport upon any specic ques
tion of fact involved. Huston et al. v. lVadsuro1'th. 213.
2. In this State there is no constitutional impediment in the way of a.
liberal construction of the Code remedy. The provision of the Constitu
tion of t-he United States (Art. VII, amendments) securing the right of
trial by jury in suits at common law where the value in controversy

State courts. Ib.
TRUST FUND :
See CREDITOR'S BILL, I, 2.
USE AND OCCUPATION :
Where one contemplates entering into possession of the lands of
another to occupy for use. and is informed by the lessor that he can do so
644
SUPREME Couar OF Conoasno.
USE AND OCCUPATIONContinued.

'
after ma.kes entry, and occupies and uses the land, it is a good acceptance
of the terms proposed, and he will become thereby bound under an mi
plied contract 'to pay the sum named, or if no sum is named, then such
price as the use was reasonably worth. Dickson v. Moatt, 114.
VACANCIES:
See CRIMINAL COURTS, 5, 6.
See COUNTY COMMISSIONERS, 1, 2, 3.
VENUE :
1. The law contemplates that upon application for change of venue,
facts shall be stated sufficient to inform the judge of the nature of the
causes for the change, and their alleged foundation. Hughes v. The
People, 436.
2. Upon application for change of venue based upon the prejudice of
the judge, w ile facts are to be stated. they are not to be set out beyond
what are necessary, where they involve the judicial acts or character of
the judge. Ib.
VERDICT :
1. The verdict of a jury as to issues of fact framed by the court in a
suit in equity, has not the dignity of a like verdict in an action at law.
lt is advisory only. It is the dutiy of the court in such case to sift the
entire evidence, and to found such ecree thereon, as may be warranted by
all the facts elicited. McGann et al. v. O'Neil, 58.
2. Where the plaintitf shows upon the trial no cause of action. or
makes out no case whatever. and no motion for nonsuit. is interposed, it
is not only the right, but may be the duty of the court to direct a ver
dict for the defendant. This practice is common to both the Code and
the common law. Murphy v. Cobb et al. 281.
VESTED RIGHTS:
See LIMITATIONS, 3, 5.
WAGER :
1. A wager as to whether an ex cution can be collected, can notbe con
sidered as a wager upon any game within the meaning of the statute.
But as between the original parties to such a transaction, a. check given
in payment is void, as being in contravention of sound policy. Bough
ner V. Meyer, 71.
2. Such a check, however, in the hands of a bonade holder, for value
received in due course of trade, must be glrotect-ed. Ib.
3. It is not sutcient to aver, in plea 'ng, that the assignw is not a
bona {dc holder, in an action by the ass gnee against the drawer; the
defen ant must aver that the plamtiE' had notice of the original trans
action, and the burden of proof of bad faith rests with him who assails
the title on that grolmd. Ib.
WARRANTY :
See COVENANTS, 2.
WATER:
While one may have the right to enter the bed of astream above
his ditch, and to remove obstructions which may have changed or ob
structed the course of the current so as to prevent the water from enter
ing his ditch, and have implied authority to do all that should become
INDEX.
645
WATER-Continued.
necessary to secure the benet of the appropriation of the water, and may
acquire an easement in the adjoining ands, yet the right thus acquired
must be held to the narrowest limits compatible with the enjoyment of
the principal easement, which is the right to the use of the water. The
most reasonable mode of effecting the object must beadopted. The con
trolling principle is, that the water shall be diverted in such a manner as
not to damage or seriously endanger the lands of owners upon the mar
gin or banks of the stream. Crisman v. Heiderer, 589.
WITNESS:
1. The otcial stenographer of the court was permitted to read from
his notes the testimony of a witness taken at the trial of the indictment,
and who was beyond the jurisdiction of the court at the trial of this cause
for the purpose of showingwant of probable cause: Held, that the stenog
ra.pher's testimony was competent. Brown v. Willoughby, 1.
2. Under sections one and ve of the act of February 11, 1870, the
husband in a. suit for divorce was s, competent witness, and desertion
held, under the act. to be such a. personal wrong as would bring the
husband within the exception provided by the terms of the statute.
Stebbins v. Anthony et al. 348.
WRIT OF ERROR :
trict and county courts as are nal. Laws 1879, p. 229. Alvord et al.
v. McGau_r]he_r/, 24-1.
2. The ofce of a. writ of error being fully explained by the common

law, and Congress having authorized this court to issue it, the jurisdic
tion to hear and determine causes brought into this court by means of
this writ, was complete without further action on the part of the legisla
ture. Stebbins v. Anthony, 27-3.
3. The Constitution of the State took the place of the organic law of the
Territory in continuing the writ of error from this court to the county
courts. Ib.
4. A writ of error must be prosecuted within ve years from the date
of the rendition of the decree in the court below. Clayton at al. v.
Cheele
, 337.
5. Irlyeirs-at-law
prosecutinz in that character, have no greater rights
than the ancestor whom they represent. and where he, if living. would
not be entitled to a. writ of error, it follows that his personal representa
tives, as such, are equally without the remedy. Ib.
6. A plaintiff in error may dismiss his writ. Becker Imp'Z, etc. v.
Henderson, 346.
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APRIL AND DECEMBER

CALLAGHAN & COMPANY, PUBLISHERS.

Entered according to an Act of Congress, in the year 1882, by

In the Office of the Librarian of Congress, at Washington.

stereotyped PrinTED and Bound

JUSTICES OF THE SUPREME COURT

TABLE OF CASES REPORTED.

Chaffee, Gomer v.............. 383

Chaffee, Speelman v............

Allen v. Tritch et al.......... ... 222

Animas Canon Toll Road Co.,

Anthony et al., Stebbins v. .... , 348

Anthony et al. Stebbins v......

Clayton et al. v. Cheeley........ 337

Clayton et al. Whitsett v....... 476

Anthony, Stebbins v. ......... 273

Collins, Sears v. .......... ... . . 492

Barker, Hawley v..............

Barndollar et al. v. Patton... .29, 46

Behrens v. K. P. Ry. Co........

Cobb et al. Murphy v. ........

Chandler, Crane et al. v........

Alvord et al. v. McGaughey.... 244

Boettcher, Colo. Nat'l B'k of

Colorado Natl B'k Wyman v.

Bond et al. v. First Nat'l B'k

Brown et al. Higgins v........

Colorado Natl B'k of Denver v.

Brown v. The State............ 496

Campbell, Wike et al. v........ 126

Crane et al. v. Chandler........ 21

Davis, Bradbury et al. v........

Duff et al. Home et al. v........ 574

# et al. # et al. v........ #

SUPREME CoURT of ColoRADo.

Hopkins, Colorado Springs Co. v. 3:33

Eddy v. Hall.................. 576

Hughes v. The People... . . . . . . .

Humphrey, Impl. etc. v. Mooney, 282

Epley et al. v. Scherer.......... 536

Elkin v. The People. . . . . . . . . . .

Hurd et al. v. Smith. . . . . . . . . .

Fassett et al. v. Mulock . . . . . . . . 466

Filley, Cody v. ................

et al. v. Fritz . . . . . . . . 174

First Natl B'k of Santa Fe, Bond

Fuller et al. v. Swan River P. Co. 123

K. P. R'y Co. Behrens v. . . . . . .

Knox et al. McFarran v........ 217

Co. L. I. Co. Cowan et

Lea et al. Colo. Cent. R. R. Co.

Gallagher et al. Keystone M. Co.